How or why does this jurisdiction refuse to recognize common law & equity, or any authorities in jurisprudence?
Let’s look at Queensland. Under the current Parliamentary Supremacy of govt, this state was ‘birthed’ in 2001, when the Qld Constitution 2001 came into existence. And hence the new jurisprudence of public policy.
Due to that timeline the supreme “Authority” for jurisprudence is held by “Bone v Mothershaw” which was a decision off the back of the newly commenced Constitution. All jurisprudence in Queensland has a “Start Date” of (approx) June 2002 to this present day.
And remember, the outcome of Bone v Mothershaw was that a court could refuse to give a petitioner permission to take their appeal to the High Court, because the High Court would refuse it!
So, the first authority for jurisprudent decisions removed the High Court from this new structure of law.
No court in QLD can use any case prior to this date as a decision making tool. And because there is such a shortage of cases to use, the Courts are bound to the Statutory Instruments (legislation).
Because of this lack of any pre-existing jurisprudence in authorities, the Courts must use that very same Statutory Instrument not only for the Court’s jurisprudence but for its authority.
In other words, the current govt legislation gives the court its rules and tells the court its decisions. And so the courts must find for the govt in almost all relevant cases.
Under that structure of legislative “precedent”, the courts now operate under a balance of probabilities. For example – you may have a tree on your land, a particular bird may prefer to nest in that type of tree, however at a point in time, the bird has never done so. You cut down that tree, and are fined heavily under the relevant environmental laws.
In effect, the court must rule that the bird could have nested in that tree, may be planning to nest in that tree, may even have been in the process of nesting in that tree, and if it had you would have harmed the bird when felling the tree.
Therefore on the balance of probabilities, you are guilty. And you cannot prove yourself innocent because there is no legislation that gives you any way of doing so.
Now at this point, you are all probably jumping up and down and telling me “They can’t do that!” “We haven’t had a referendum about this!” “They can’t do that under this law, that law, the other law!” And a few more “They can’t do that!”
Well, they have. And the sooner we accept that and work out how to restore our Constitution to its supremacy, return ourselves to being common law men and women, turf out these fraudulent individuals and learn to protect our vital rights, the less likely this is to happen ever again.
Meanwhile, it has and what can we do about it?
Wednesday, December 23, 2009
State Governments of Australia in 2009
The Constitution refers to a State. That being “a State” of the Commonwealth of Australia (Chapter 5).
The reference to “the State” is to the State of the Commonwealth of Australia and its external territories.
To clarify the term “the State” and its effect within today’s laws. The best way to explain this is take the meaning of “the State” from the South Australian Acts Interpretation Act 1919 (SA) at s4A, where it says this about the State:
Acts Interpretation Act 1915 (SA)
Section 4A headed, Date of establishment of the State “For the purposes of the law of the State, the State will be taken to have been established on the twenty-eighth day of December, 1836.”
Therefore, in each government, The State is the entity created at its inception as a colony, prior to the Federation when that state became A State. The State being an independent entity, A State being a confederated entity.
In other words, the Constitutional states are still in existence, the govts of those states have simply returned to operating under their original colonial constitutions.
Have we returned to being prisoners under military rule then?
Now as a consequence of holding (keeping) Chapter 2 and the reading down (ignoring) of Chapters 1 and 3 specifically, the Executive Government of the Commonwealth and the Executive Governments of “the States” are exercising extraordinary powers through the process known as COAG which is based on a process of Statutory agreements alienated (separate) from the Constitution.
What is now created? –
The reference to “the State” is to the State of the Commonwealth of Australia and its external territories.
To clarify the term “the State” and its effect within today’s laws. The best way to explain this is take the meaning of “the State” from the South Australian Acts Interpretation Act 1919 (SA) at s4A, where it says this about the State:
Acts Interpretation Act 1915 (SA)
Section 4A headed, Date of establishment of the State “For the purposes of the law of the State, the State will be taken to have been established on the twenty-eighth day of December, 1836.”
Therefore, in each government, The State is the entity created at its inception as a colony, prior to the Federation when that state became A State. The State being an independent entity, A State being a confederated entity.
In other words, the Constitutional states are still in existence, the govts of those states have simply returned to operating under their original colonial constitutions.
Have we returned to being prisoners under military rule then?
Now as a consequence of holding (keeping) Chapter 2 and the reading down (ignoring) of Chapters 1 and 3 specifically, the Executive Government of the Commonwealth and the Executive Governments of “the States” are exercising extraordinary powers through the process known as COAG which is based on a process of Statutory agreements alienated (separate) from the Constitution.
What is now created? –
- An independent jurisdiction without limit, or restriction,
- that was in existence before Federation (Colonies)
- with the exception, that British Law no longer applies by virtue of the Australia Act.
- Therefore; there is no applicable jurisprudence obtainable from within Chapters 1 or 3 of the Constitution.
- The jurisprudence is now held solely within the Statutory Instrument (govt legislation) and again is alienated from the Constitution.
So, the Crown now resides in the “hands” of the Governor, who is under the advisement of the Federal Executive.
The Executive has assumed the role of Governor, therefore the Crown now resides in the hands of the Executive.
Therefore all state legislation made by the
executive=governor=crown is binding.
The Executive Government of Australia in 2009
The Australian Constitution is divided into “Jurisdictions” (i.e. parliament, executive, crown, judiciary)
Chapter 1 – The Parliament
Chapter II – the Executive
Chapter III – the Judicature
Govt have “read down” (ignored) Ch I & III.
They have found a loophole and “created” a new “constitution” out of Chapter II s61, s62 and s63. Hence the Australia Act 1986.
Thus – the Governor-General exercises the power of the Queen (61), under the advisement of the Federal Executive Council (62), therefore this provision of this constitution referring to him shall be construed as referring to him acting in advice (63).
In other words, the GG works in with the Executive to exercise the powers vested in him.
S63, therefore allows the Executive to assume the role of the Governor-General as Head of State.
This has created an entirely new jurisdiction INSIDE the Australian Constitution – the jurisdiction referred to by the High Court in several cases. Note: In most legislature “This Act binds the crown in each of its capacities”.
Remember, the Australian Constitution is STILL IN PLACE. This new structure operates like a cancer INSIDE the Aust Constitution.This new jurisdiction is known as the law of the body politic, or the law of public policy (e.g EPBC Act 1999, Local Govt Act 1995 & etc) .
It has allowed, over the previous 20 years, the dramatic amendments (parliamentary supremacy) to the Judiciary Act 1903 specifically during the Hawke/Keating years and more aggressively through the Howard years.
This jurisdiction (public policy) has the ability to create laws that remove, or weaken all and any provisions (Common law) normally found under the jurisdictions of Chapter 1 and 3 (remember they are being ignored).
The public policy jurisdiction (Statute law Miscellaneous Provisions) has its own Courts (Tribunals, or Committees), Rules of Court and employs a different type of public servant, that being a person, or authority in the service of the Government (assumed Crown) as differentiated from, in the service of the Crown.
In nearly all circumstances in the provisioning of statutory instruments made under this jurisdiction, the so called Government public servants attain the authority of “authorised officers” exercising similar powers to police officers (Crown employees) which include powers of search, power to obtain documents, power to demand answers to questions at a time and place of their choosing and the power to prosecute.
This jurisdiction operates WITHOUT restriction, or limitation. Nearly all the States, particularly Qld, make all law under this jurisdiction and there is absolutely no provision for cross-vesting between these two jurisdictions. Cross-vesting being the ability for a court to recognize both or either common law and/or civil law (ie. mercantile, admiralty).
In other words, this parliamentary supremacy has created a new form of law under public policy, new courts to administer that law and new public servants to police that form of law. The new courts do not have the ability to adjudicate under any form of common law, but at all times can only operate under civil law.
Who closes it down when govt finds a loophole – this time in the very structure of the governance of our country?
We, the people do!
Chapter 1 – The Parliament
Chapter II – the Executive
Chapter III – the Judicature
Govt have “read down” (ignored) Ch I & III.
They have found a loophole and “created” a new “constitution” out of Chapter II s61, s62 and s63. Hence the Australia Act 1986.
Thus – the Governor-General exercises the power of the Queen (61), under the advisement of the Federal Executive Council (62), therefore this provision of this constitution referring to him shall be construed as referring to him acting in advice (63).
In other words, the GG works in with the Executive to exercise the powers vested in him.
S63, therefore allows the Executive to assume the role of the Governor-General as Head of State.
This has created an entirely new jurisdiction INSIDE the Australian Constitution – the jurisdiction referred to by the High Court in several cases. Note: In most legislature “This Act binds the crown in each of its capacities”.
Remember, the Australian Constitution is STILL IN PLACE. This new structure operates like a cancer INSIDE the Aust Constitution.This new jurisdiction is known as the law of the body politic, or the law of public policy (e.g EPBC Act 1999, Local Govt Act 1995 & etc) .
It has allowed, over the previous 20 years, the dramatic amendments (parliamentary supremacy) to the Judiciary Act 1903 specifically during the Hawke/Keating years and more aggressively through the Howard years.
This jurisdiction (public policy) has the ability to create laws that remove, or weaken all and any provisions (Common law) normally found under the jurisdictions of Chapter 1 and 3 (remember they are being ignored).
The public policy jurisdiction (Statute law Miscellaneous Provisions) has its own Courts (Tribunals, or Committees), Rules of Court and employs a different type of public servant, that being a person, or authority in the service of the Government (assumed Crown) as differentiated from, in the service of the Crown.
In nearly all circumstances in the provisioning of statutory instruments made under this jurisdiction, the so called Government public servants attain the authority of “authorised officers” exercising similar powers to police officers (Crown employees) which include powers of search, power to obtain documents, power to demand answers to questions at a time and place of their choosing and the power to prosecute.
This jurisdiction operates WITHOUT restriction, or limitation. Nearly all the States, particularly Qld, make all law under this jurisdiction and there is absolutely no provision for cross-vesting between these two jurisdictions. Cross-vesting being the ability for a court to recognize both or either common law and/or civil law (ie. mercantile, admiralty).
In other words, this parliamentary supremacy has created a new form of law under public policy, new courts to administer that law and new public servants to police that form of law. The new courts do not have the ability to adjudicate under any form of common law, but at all times can only operate under civil law.
Let’s make this even simpler to understand.
Look at your body, it operates under the laws of nature, thriving with the proper food, liquid, exercise. Natural rights each of us are entitled to.
A cancer creeps in, finds a home in a portion of your body and proceeds to build its own structure. With the end aim of taking over & perhaps killing you.
There is nothing illegal about this cancer, it comes from your own body, feeds from your own body, but it is against the law of nature as it creates its own kingdom INSIDE your body, taking over your right to health.
Look at your body, it operates under the laws of nature, thriving with the proper food, liquid, exercise. Natural rights each of us are entitled to.
A cancer creeps in, finds a home in a portion of your body and proceeds to build its own structure. With the end aim of taking over & perhaps killing you.
There is nothing illegal about this cancer, it comes from your own body, feeds from your own body, but it is against the law of nature as it creates its own kingdom INSIDE your body, taking over your right to health.
Now we constantly hear reference to tax loopholes – usually found by the wealthy with the assistance of high-priced lawyers. Govt get wind of these loopholes and close them.
Government have simply found a loophole in the Constitution – except it is a loophole that is turning the people of Australia into slaves, with no personal liberties, no right of ownership and no ability to protect themselves legally.
Government have simply found a loophole in the Constitution – except it is a loophole that is turning the people of Australia into slaves, with no personal liberties, no right of ownership and no ability to protect themselves legally.
Who closes it down when govt finds a loophole – this time in the very structure of the governance of our country?
We, the people do!
This is what govt have been working to create since possibly the inception of the Australian Constitution 1900. The Framers of the Constitution are quoted in the Commentaries on the Constitution of the Commonwealth of Australia by Sir Robert Garran (1867 - 1957) - It was the great ambition of the framers of the Australian Constitutions of 1855–6 to acclimatize, in the colonies which they were then helping to found, the system thus known as Responsible Government.
This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation,” by Sir Richard C. Baker, K.C.M.G., p.l.)
In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory. In particular, strong objection is taken to the insertion in the Constitution of a cast-iron condition that Federal Ministers must be members of Parliament. Membership of Parliament, it is argued, is not of the essence of Responsible Government, but only an incident or an accidental feature, which has been introduced by modern practice and by statutory innovation.
This brings us to a review of some of the objections which have been raised to the application of the Cabinet system of Executive Government to a federation. These objections have been formulated with great ability and sustained with force and earnestness by several Australian federalists of eminence, among whom may be mentioned the names of Sir Samuel Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system of Executive is incompatible with a true Federation. (See “The Executive in a Federation,” by Sir Richard C. Baker, K.C.M.G., p.l.)
In support of this contention it is argued that, in a Federation, it is a fundamental rule that no new law shall be passed and no old law shall be altered without the consent of (1) a majority of the people speaking by their representatives in one House, and (2) a majority of the States speaking by their representatives in the other house; that the same principle of State approval as well as popular approval should apply to Executive action, as well as to legislative action; that the State should not be forced to support Executive policy and Executive acts merely because ministers enjoyed the confidence of the popular Chamber; that the State House would be justified in withdrawing its support from a ministry of whose policy and executive acts it disapproved; that the State House could, as effectually as the primary Chamber, enforce its want of confidence by refusing to provide the necessary supplies. The Senate of the French Republic, it is pointed out, has established a precedent showing how an Upper House can enforce its opinions and cause a change of ministry. On these grounds it is contended that the introduction of the Cabinet system of Responsible Government into a Federation, in which the relations of two branches of the legislature, having equal and co-ordinate authority, are quite different from those existing in a single autonomous State, is repugnant to the spirit and intention of a scheme of Federal Government. In the end it is predicted that either Responsible Government will kill the Federation and change it into a unified State, or the Federation will kill Responsible Government and substitute a new form of Executive more compatible with the Federal theory. In particular, strong objection is taken to the insertion in the Constitution of a cast-iron condition that Federal Ministers must be members of Parliament. Membership of Parliament, it is argued, is not of the essence of Responsible Government, but only an incident or an accidental feature, which has been introduced by modern practice and by statutory innovation.
Monday, December 14, 2009
The Superiority of private Land Ownership Rights
Under English law, the recognition of ownership must always include the ability to inherit. That recognition being accepted by English law as fee simple ownership.
Civil law can recognise Fee Simple BUT it is enshrined in an extremely tight constitution where it can not be interfered with.
The problem that our Australian Federal & State legislatures have is that statute law can not guarantee rights because the statute can changed or even repealed. In civil law countries (France, Germany etc) these rights are enshrined in their very tight constitutions. In common law countries these rights are enshrined in the common law itself although it must be said that civil law countries have elements of common law as well, and vice versa. However, in Australia they are progressively extinguishing the common law and replacing it with civil law without any enshrined constitutional mechanism that protect the rights lost by the removal of the common law. Single or multiple statutes can not accommodate those rights because they can be removed or altered at the whim of the parliament or "Polite Bureau".
With regards to land ownership those rights are tied up in an "Inheritable Estate" which in this country can only be Fee Simple. Lease hold titles are not inheritable because they are titles by virtue of a "Statute" and that statute can be altered or repealed therefore there is no security of inheritance.
Therefore if the legislature removes the "Inheritance" or can not guarantee the inheritance of a "title of inheritance" that once existed, but by virtue of a statute has been removed and IN DOING SO also imposes a penalty (for destroying ones inheritance and therefore private property) therein lies an "ABSOLUTE TAKING". The "Penalty" and criminal prosecution means that you have destroyed "Their Property" NOT YOURS therefore the inheritance has transferred to the Government and the "Public".
MABO and ANOTHER v. THE STATE OF QUEENSLAND and ANOTHER [1988] HCA 69; (1989) 166 CLR 186 F.C. 88/062 (8 December 1988)
Deane:
23. The question therefore arises whether the practical effect of the Act would, upon the assumption made for the purposes of the demurrer, be to produce a situation where the Torres Strait Islanders or the Miriam people(being "persons of a particular race, colour or national or ethnic origin") "do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than" such other persons within the meaning of those words as used in s.10 of the Commonwealth Act. In the light of what has been said above, the answer to that question must, in my view, be in the affirmative.
The practical operation and effect of the Act, even on the correct and more confined construction of s.3, are to single out the Torres Strait Islanders (including the Miriam people) for discriminatory treatment in relation to traditional proprietary rights and interests to and in their homelands. The confiscation or extinction of such rights and interests without any compensation or any procedure for ascertaining or assessing the existence and extent of the claims of particular individuals is a denial of the entitlements to ownership and inheritance of property, including the implicit immunity from arbitrary dispossession, which are "rights" for the purposes of s.10(1) of the Commonwealth Act.
That denial of rights is confined to the Torres Strait Islanders. It does not extend to persons of "another race, colour or national or ethnic origin". Its effect is that the Torres Strait Islanders, including the Miriam people, are denied ("do not enjoy") "rights", including the entitlement to immunity from being arbitrarily dispossessed, which are enjoyed by those other persons. That being so, that denial attracts the protective provisions of s.10(1) of the Commonwealth Act. In the context of the provisions of s.10(3), it would be anomolous if it were otherwise.
Mabo (2)
Deane and Gaudron:
69. The detailed findings of Moynihan J. of the Supreme Court of Queensland in relation to the issues of fact remitted to that court unavoidably contain areas of uncertainty and elements of speculation. Nonetheless, they provide, for present purposes, a sound basis for some generalizations in relation to native entitlements to the occupation and use of land within the Murray Islands under local law or custom at the time of their annexation to Queensland. It suffices, for the purposes of this judgment, to say that the Meriam people lived in an organized community which recognized individual and family rights of possession, occupation and exploitation of identified areas of land.
The entitlement to occupation and use of land differed from what has come to be recognized as the ordinary position in settled British Colonies in that, under the traditional law or custom of the Murray Islanders, there was a consistent focus upon the entitlement of the individual or family as distinct from the community as a whole or some larger section of it. It would seem that, with the exception of the area used by the London Missionary Society, those individual or familial entitlements under traditional law or custom extended to all the land of the Islands. It is true, as the learned Solicitor-General for Queensland submitted, that it is impossible to identify any precise system of title, any precise rules of inheritance or any precise methods of alienation. Nonetheless, there was undoubtedly a local native system under which the established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to found a presumptive common law native title. In circumstances where the strong assumption of the common law was unaffected by the act of State annexing the Islands, the effect of the annexation was that the traditional entitlements of the Meriam people were preserved. The radical title to all the lands of the Islands vested in the Crown.
The Crown's proprietary estate in the land was, however, reduced, qualified or burdened by the common law native title of the Islanders which was thereafter recognized and protected by the law of ueensland. It is unnecessary to determine whether the lands of the Islands became, upon annexation, Crown lands for the purposes of the Crown Lands Alienation Act. If they did, the common law native title of the Islanders was not extinguished but remained a burden on the underlying title of the Crown, and any provisions of that Act which would have the effect of modifying the common law native title or restricting the rights of use and occupation of the Islanders were, to that extent, inapplicable.
Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] [HCA]
One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia's domestic law, still less of its Constitution[479]. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation[480]. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution[481].
The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms"[482]. Such jurisprudence has its analogies in the courts of several other countries[483]. The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted[484].
The Universal Declaration states in Article 17:
"1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property."
Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided:
"To any man whom we have deprived or dispossed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".
A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen, 1789[485]:
"Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".
Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that[486]:
"No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."
The original provision to this effect in the Indian Constitution[487] has been amended several times [488]. The provision required that no person should be deprived of that person's property save by authority of law and such law had to provide for compensation for the property so acquired or requisitioned[489]. The Supreme Court of India, while that test stood, insisted that provisions for compensation were a necessary condition for the making of a valid law providing for the acquisition or requisition of property by the state [490]. In other countries of the region property rights are constitutionally protected by the same two requirements. Thus, Malaysia's Constitution provides that there shall be no deprivation of property save in accordance with law and no valid law for compulsory acquisition or use of property without adequate compensation[491]. Similarly the Japanese Consititution provides[492] that "[p]rivate [p]roperty may be taken for public use upon just compensation". In South Africa, where the issue was much debated in the context of the rights of the dispossessed majority, the 1996 Bill of Rights provides that "[n]o-one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property"[493].
In effect, the foregoing constitutional provisions do no more than reflect universal and fundamental rights by now recognised by customary international law. Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right[494], s 51(xxxi) of the Australian Constitution must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.
When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights[495]. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose. That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.
The authority of Teori Tau apart, a correct understanding of the Constitution does not oblige a construction condoning a law made by the Federal Parliament for a territory providing for the acquisition of property otherwise than on just terms. The obstacle which Teori Tau presents to the adoption of the correct constitutional principle should be overcome. This may the more readily be done because that decision effectively breaks a promise given on behalf of the Commonwealth at federation adopting a safeguard, restriction or qualification on its lawmaking powers relevant to the fundamental rights of all persons from whom property is compulsorily acquired under federal law. That promise extends to the territories and to laws for the government of the territories. This Court should ensure that the promise is kept. The decision in Teori Tau should be overruled. Section 51 (xxxi) applies to a law made by the Federal Parliament under s 122. It therefore applies to the Conservation Act. It follows that the orders and declarations proposed by Gummow J should be made.
Civil law can recognise Fee Simple BUT it is enshrined in an extremely tight constitution where it can not be interfered with.
The problem that our Australian Federal & State legislatures have is that statute law can not guarantee rights because the statute can changed or even repealed. In civil law countries (France, Germany etc) these rights are enshrined in their very tight constitutions. In common law countries these rights are enshrined in the common law itself although it must be said that civil law countries have elements of common law as well, and vice versa. However, in Australia they are progressively extinguishing the common law and replacing it with civil law without any enshrined constitutional mechanism that protect the rights lost by the removal of the common law. Single or multiple statutes can not accommodate those rights because they can be removed or altered at the whim of the parliament or "Polite Bureau".
With regards to land ownership those rights are tied up in an "Inheritable Estate" which in this country can only be Fee Simple. Lease hold titles are not inheritable because they are titles by virtue of a "Statute" and that statute can be altered or repealed therefore there is no security of inheritance.
Therefore if the legislature removes the "Inheritance" or can not guarantee the inheritance of a "title of inheritance" that once existed, but by virtue of a statute has been removed and IN DOING SO also imposes a penalty (for destroying ones inheritance and therefore private property) therein lies an "ABSOLUTE TAKING". The "Penalty" and criminal prosecution means that you have destroyed "Their Property" NOT YOURS therefore the inheritance has transferred to the Government and the "Public".
MABO and ANOTHER v. THE STATE OF QUEENSLAND and ANOTHER [1988] HCA 69; (1989) 166 CLR 186 F.C. 88/062 (8 December 1988)
Deane:
23. The question therefore arises whether the practical effect of the Act would, upon the assumption made for the purposes of the demurrer, be to produce a situation where the Torres Strait Islanders or the Miriam people(being "persons of a particular race, colour or national or ethnic origin") "do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than" such other persons within the meaning of those words as used in s.10 of the Commonwealth Act. In the light of what has been said above, the answer to that question must, in my view, be in the affirmative.
The practical operation and effect of the Act, even on the correct and more confined construction of s.3, are to single out the Torres Strait Islanders (including the Miriam people) for discriminatory treatment in relation to traditional proprietary rights and interests to and in their homelands. The confiscation or extinction of such rights and interests without any compensation or any procedure for ascertaining or assessing the existence and extent of the claims of particular individuals is a denial of the entitlements to ownership and inheritance of property, including the implicit immunity from arbitrary dispossession, which are "rights" for the purposes of s.10(1) of the Commonwealth Act.
That denial of rights is confined to the Torres Strait Islanders. It does not extend to persons of "another race, colour or national or ethnic origin". Its effect is that the Torres Strait Islanders, including the Miriam people, are denied ("do not enjoy") "rights", including the entitlement to immunity from being arbitrarily dispossessed, which are enjoyed by those other persons. That being so, that denial attracts the protective provisions of s.10(1) of the Commonwealth Act. In the context of the provisions of s.10(3), it would be anomolous if it were otherwise.
Mabo (2)
Deane and Gaudron:
69. The detailed findings of Moynihan J. of the Supreme Court of Queensland in relation to the issues of fact remitted to that court unavoidably contain areas of uncertainty and elements of speculation. Nonetheless, they provide, for present purposes, a sound basis for some generalizations in relation to native entitlements to the occupation and use of land within the Murray Islands under local law or custom at the time of their annexation to Queensland. It suffices, for the purposes of this judgment, to say that the Meriam people lived in an organized community which recognized individual and family rights of possession, occupation and exploitation of identified areas of land.
The entitlement to occupation and use of land differed from what has come to be recognized as the ordinary position in settled British Colonies in that, under the traditional law or custom of the Murray Islanders, there was a consistent focus upon the entitlement of the individual or family as distinct from the community as a whole or some larger section of it. It would seem that, with the exception of the area used by the London Missionary Society, those individual or familial entitlements under traditional law or custom extended to all the land of the Islands. It is true, as the learned Solicitor-General for Queensland submitted, that it is impossible to identify any precise system of title, any precise rules of inheritance or any precise methods of alienation. Nonetheless, there was undoubtedly a local native system under which the established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to found a presumptive common law native title. In circumstances where the strong assumption of the common law was unaffected by the act of State annexing the Islands, the effect of the annexation was that the traditional entitlements of the Meriam people were preserved. The radical title to all the lands of the Islands vested in the Crown.
The Crown's proprietary estate in the land was, however, reduced, qualified or burdened by the common law native title of the Islanders which was thereafter recognized and protected by the law of ueensland. It is unnecessary to determine whether the lands of the Islands became, upon annexation, Crown lands for the purposes of the Crown Lands Alienation Act. If they did, the common law native title of the Islanders was not extinguished but remained a burden on the underlying title of the Crown, and any provisions of that Act which would have the effect of modifying the common law native title or restricting the rights of use and occupation of the Islanders were, to that extent, inapplicable.
Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] [HCA]
One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia's domestic law, still less of its Constitution[479]. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation[480]. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution[481].
The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms"[482]. Such jurisprudence has its analogies in the courts of several other countries[483]. The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted[484].
The Universal Declaration states in Article 17:
"1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property."
Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided:
"To any man whom we have deprived or dispossed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".
A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen, 1789[485]:
"Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".
Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that[486]:
"No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."
The original provision to this effect in the Indian Constitution[487] has been amended several times [488]. The provision required that no person should be deprived of that person's property save by authority of law and such law had to provide for compensation for the property so acquired or requisitioned[489]. The Supreme Court of India, while that test stood, insisted that provisions for compensation were a necessary condition for the making of a valid law providing for the acquisition or requisition of property by the state [490]. In other countries of the region property rights are constitutionally protected by the same two requirements. Thus, Malaysia's Constitution provides that there shall be no deprivation of property save in accordance with law and no valid law for compulsory acquisition or use of property without adequate compensation[491]. Similarly the Japanese Consititution provides[492] that "[p]rivate [p]roperty may be taken for public use upon just compensation". In South Africa, where the issue was much debated in the context of the rights of the dispossessed majority, the 1996 Bill of Rights provides that "[n]o-one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property"[493].
In effect, the foregoing constitutional provisions do no more than reflect universal and fundamental rights by now recognised by customary international law. Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right[494], s 51(xxxi) of the Australian Constitution must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.
When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights[495]. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose. That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.
The authority of Teori Tau apart, a correct understanding of the Constitution does not oblige a construction condoning a law made by the Federal Parliament for a territory providing for the acquisition of property otherwise than on just terms. The obstacle which Teori Tau presents to the adoption of the correct constitutional principle should be overcome. This may the more readily be done because that decision effectively breaks a promise given on behalf of the Commonwealth at federation adopting a safeguard, restriction or qualification on its lawmaking powers relevant to the fundamental rights of all persons from whom property is compulsorily acquired under federal law. That promise extends to the territories and to laws for the government of the territories. This Court should ensure that the promise is kept. The decision in Teori Tau should be overruled. Section 51 (xxxi) applies to a law made by the Federal Parliament under s 122. It therefore applies to the Conservation Act. It follows that the orders and declarations proposed by Gummow J should be made.
Are Australians Already Enslaved?
Environment Protections & Biodiversity Conservation Act 1999
The act states in s3, that
1) The objects of this Act are:
(a) to provide for the protection of the environment,
(d) to promote a co‑operative approach to the protection and management of the environment involving governments, the community, land‑holders and indigenous peoples; and
(e) to assist in the co‑operative implementation of Australia's international environemental responsibilities
The act then states in s528 Definitions that
"environment" includes:
(a) ecosystems and their constituent parts, including people and communities
Now the meaning of the word “People” under Australian law is not defined.
The meaning of person is in the Acts Interpretation Act 1901 s 22
Meaning of certain words
(1) In any Act, unless the contrary intention appears:
(a) expressions used to denote persons generally (such as " person ", "party", "someone", "anyone", "no‑one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual;
(aa) individual means a natural person ;
(Very important to note the use of the words contrary and includes. Contrary tell us that this meaning applies unless there is a “differing” or “inconsistent” meaning. Includes however is a word that gathers every definition under its meaning. There can be no inconsistency of meaning, because all the contrary intentions have been gathered under that word “includes”. At no time in this Act is the word “exclude” used in any reference to free will, sovereignty, private ownership rights, etc of any kind.)
The legal meaning of “people” as defined in Blacks Law Dictionary No 1
“A state; as the people of the state of New York. A nation of its collective and political capacity. “
So, the only definition of ‘people’ we have is the legal interpretation, & the creators of this International Treaty, have been very careful not to place this over the individual, but over the collective of individuals.
Therefore, to prove you have these rules now enslaving you, you must first identify yourself with the collective.
One interpretation may be found in the Criminal Code Act 1995, where people is always defined as more than one person by implication. (More research will be necessary re this word.)
This means that when the Australian government makes rules about the environment, those rules include YOU (under the collective) in the jurisdiction.
This then allows the Australian Government to apply restrictions, orders, enforcements and the like over YOUR (under the collective) activities as defined in the UN Global Biodiversity Assessment Report.
Hence such imposed activities as Fluoride – being the imposition of a supposedly healthy activity OVER the people and the community, who of course come under the responsibility of govt via the EPBC Act 1999. They are making sure the “environment” is “healthy”.
YOU are NO longer a free will person, because the government have “stolen” your free will and replaced it with their rules.
If we go to the list of unsustainable activities that were listed on the UN The Global Biodiversity Assessment Report - they are ALL human activities.
These activities involve leisure, work, homes and food creation involving land use.
All activities, on land, are defined as unsustainable.
How then are people supposed to remain alive if every activity they perform, on land, is unsustainable.
And if any activity, on land, that sustains the People, is no longer permissible under the “global crisis” as promulgated by Gore – are the People going to be allowed to continue to have children, make personal choices as to the kind of life they wish to have, live and work where they choose, eat the kind of food they choose, etc?
Here is a list of the things that the The Global Biodiversity Assessment Report directed by the United Nations Environment Programme (UNEP) considers Unsustainable -
Ski Runs - Grazing of Livestock: cows, sheep, goats, horses - Disturbance of the Soil Surface - Large hoofed animals, compaction of soil, reducing filtration - Fencing of Pastures or Paddocks - Agriculture - Modern Farm Production Systems - Chemical Fertilizers - Herbicides - Building Materials - Industrial Activities - Human-Made caves of brick and mortar, concrete and steel - Paved and Tarred roads, highways, rails - Railroads - Floor and Wall Tiles - Aquaculture - Technology Improvements - Farmlands, Ranglands - Pastures, Ranglands - Pastures - Fish Ponds - Plantations - Modern Hunting - Harvesting of Timber - Logging Activities - Fossil Fuels - Used for driving various kinds of machines - Dams, Reseroirs, Straightening Rivers - Power Line Construction -Economic systems that fail to set a proper value on the environment - Inappropriate Social Structures - Weaknesses in Legal and Institutional Systems - Modern Attitudes toward nature - Judaeo-Christian-Islamic religions - Private Property - Population Growth - Human Population Density - Consumerism - Fragmentation of Habitat - cemeteries, derelict lands, rubbish tips, etc - Sewers, Drain Systems, Pipelines - Land use that serves human needs - Fisheries - Golf Courses - Scuba Diving - Synthetic drugs - Fragmentation - Agricultural development, Forestry Urbanization (impervious surfaces)
The other issue to understand is that an International Treaty such as the EPBC Act 1999, is a “contractural” arrangement between two or more different parties.
If this act has effectively “enslaved” the people by removing their free will & their sovereignty, who are the other parties outside the Aust Federal Govt who now have certain as yet undetermined rights of foreign sovereignty in Australia and over the people?
The act states in s3, that
1) The objects of this Act are:
(a) to provide for the protection of the environment,
(d) to promote a co‑operative approach to the protection and management of the environment involving governments, the community, land‑holders and indigenous peoples; and
(e) to assist in the co‑operative implementation of Australia's international environemental responsibilities
The act then states in s528 Definitions that
"environment" includes:
(a) ecosystems and their constituent parts, including people and communities
Now the meaning of the word “People” under Australian law is not defined.
The meaning of person is in the Acts Interpretation Act 1901 s 22
Meaning of certain words
(1) In any Act, unless the contrary intention appears:
(a) expressions used to denote persons generally (such as " person ", "party", "someone", "anyone", "no‑one", "one", "another" and "whoever"), include a body politic or corporate as well as an individual;
(aa) individual means a natural person ;
(Very important to note the use of the words contrary and includes. Contrary tell us that this meaning applies unless there is a “differing” or “inconsistent” meaning. Includes however is a word that gathers every definition under its meaning. There can be no inconsistency of meaning, because all the contrary intentions have been gathered under that word “includes”. At no time in this Act is the word “exclude” used in any reference to free will, sovereignty, private ownership rights, etc of any kind.)
The legal meaning of “people” as defined in Blacks Law Dictionary No 1
“A state; as the people of the state of New York. A nation of its collective and political capacity. “
So, the only definition of ‘people’ we have is the legal interpretation, & the creators of this International Treaty, have been very careful not to place this over the individual, but over the collective of individuals.
Therefore, to prove you have these rules now enslaving you, you must first identify yourself with the collective.
One interpretation may be found in the Criminal Code Act 1995, where people is always defined as more than one person by implication. (More research will be necessary re this word.)
This means that when the Australian government makes rules about the environment, those rules include YOU (under the collective) in the jurisdiction.
This then allows the Australian Government to apply restrictions, orders, enforcements and the like over YOUR (under the collective) activities as defined in the UN Global Biodiversity Assessment Report.
Hence such imposed activities as Fluoride – being the imposition of a supposedly healthy activity OVER the people and the community, who of course come under the responsibility of govt via the EPBC Act 1999. They are making sure the “environment” is “healthy”.
YOU are NO longer a free will person, because the government have “stolen” your free will and replaced it with their rules.
If we go to the list of unsustainable activities that were listed on the UN The Global Biodiversity Assessment Report - they are ALL human activities.
These activities involve leisure, work, homes and food creation involving land use.
All activities, on land, are defined as unsustainable.
How then are people supposed to remain alive if every activity they perform, on land, is unsustainable.
And if any activity, on land, that sustains the People, is no longer permissible under the “global crisis” as promulgated by Gore – are the People going to be allowed to continue to have children, make personal choices as to the kind of life they wish to have, live and work where they choose, eat the kind of food they choose, etc?
Here is a list of the things that the The Global Biodiversity Assessment Report directed by the United Nations Environment Programme (UNEP) considers Unsustainable -
Ski Runs - Grazing of Livestock: cows, sheep, goats, horses - Disturbance of the Soil Surface - Large hoofed animals, compaction of soil, reducing filtration - Fencing of Pastures or Paddocks - Agriculture - Modern Farm Production Systems - Chemical Fertilizers - Herbicides - Building Materials - Industrial Activities - Human-Made caves of brick and mortar, concrete and steel - Paved and Tarred roads, highways, rails - Railroads - Floor and Wall Tiles - Aquaculture - Technology Improvements - Farmlands, Ranglands - Pastures, Ranglands - Pastures - Fish Ponds - Plantations - Modern Hunting - Harvesting of Timber - Logging Activities - Fossil Fuels - Used for driving various kinds of machines - Dams, Reseroirs, Straightening Rivers - Power Line Construction -Economic systems that fail to set a proper value on the environment - Inappropriate Social Structures - Weaknesses in Legal and Institutional Systems - Modern Attitudes toward nature - Judaeo-Christian-Islamic religions - Private Property - Population Growth - Human Population Density - Consumerism - Fragmentation of Habitat - cemeteries, derelict lands, rubbish tips, etc - Sewers, Drain Systems, Pipelines - Land use that serves human needs - Fisheries - Golf Courses - Scuba Diving - Synthetic drugs - Fragmentation - Agricultural development, Forestry Urbanization (impervious surfaces)
The other issue to understand is that an International Treaty such as the EPBC Act 1999, is a “contractural” arrangement between two or more different parties.
If this act has effectively “enslaved” the people by removing their free will & their sovereignty, who are the other parties outside the Aust Federal Govt who now have certain as yet undetermined rights of foreign sovereignty in Australia and over the people?
Brigalow Corporation
Brigalow Corporation (of the State of Qld) originated in the old Qld crowns lands act and came about through the Qld government borrowing from the federal government funds to develop what was termed the “Brigalow Belt” (about 4 mil acres) out from Rockhampton during the 1960’s.
The old crowns lands act (Qld) has now been converted to the “Land Act 1994 (Qld)” and this is where you can find the “Brigalow Corporation” today. In essence the government of Qld has moved all the crowns land AND all crown land that was sold (fee simple) into the Brigalow Corporation through the Land Act, Land Title Act, Property Law Act, etc, etc, etc.
This was achieved through a series of Constitutional changes that were “Reprinted” into and out of the 1867 Constitution commencing in 1996 with “Reprint no 1” and ending with the introduction of the 2001 Queensland Constitution Act (whole new constitution) all without a referendum of any sort.
Once the necessary changes to the “Engine” have been made then moving or amending all subordinate laws is very simple, just reprint them starting with the Acts Interpretation Act 1954 (Qld).
The “Brigalow Corporation” in not Listed as a “Public” company on the Stock Exchange, it is an “Exempt Public Authority” which is found by definition at s9 and 5A of the Corporations Act 2001 (C’wth) (in right of the crown), except there is no “Crown” in Qld just “the State”.
The term “The State” or as written in most the modern Qld statutes, “This Act binds the state” is reminiscent of Stalin’s Russia where everything was the property of “The State”.
The old crowns lands act (Qld) has now been converted to the “Land Act 1994 (Qld)” and this is where you can find the “Brigalow Corporation” today. In essence the government of Qld has moved all the crowns land AND all crown land that was sold (fee simple) into the Brigalow Corporation through the Land Act, Land Title Act, Property Law Act, etc, etc, etc.
This was achieved through a series of Constitutional changes that were “Reprinted” into and out of the 1867 Constitution commencing in 1996 with “Reprint no 1” and ending with the introduction of the 2001 Queensland Constitution Act (whole new constitution) all without a referendum of any sort.
Once the necessary changes to the “Engine” have been made then moving or amending all subordinate laws is very simple, just reprint them starting with the Acts Interpretation Act 1954 (Qld).
The “Brigalow Corporation” in not Listed as a “Public” company on the Stock Exchange, it is an “Exempt Public Authority” which is found by definition at s9 and 5A of the Corporations Act 2001 (C’wth) (in right of the crown), except there is no “Crown” in Qld just “the State”.
The term “The State” or as written in most the modern Qld statutes, “This Act binds the state” is reminiscent of Stalin’s Russia where everything was the property of “The State”.
Who Makes the Rules In & For Queensland?
Notes from information provided by the Envirowild Research Team - May 2008
This question must be answered by both the courts and the government.
Under the Australian Constitutional structure & the Commonwealth we have a Separation of Powers, where the Judiciary are not to be governed or influenced by the Parliament.
This is evidenced in (reference included in this document) –
Judiciary Act 1903 – sect 86
High Court of Australia Act 1979 – sect 48
Federal Magistrates Act 1999 – sect 81
Legislative Instruments Act 2003 – sect 9
Acts Interpretation Act 1901 – sect 28
Each of these sections gives the authority to make the Rules of Court to –
Justices of the High Court
Federal Magistrates
However, in Queensland, the Supreme Court of Queensland Act 1991 (Page 7) , which was reprinted in 1995, states in sect 118 (1) , the Governor in Council may make rules of court under this act for the Supreme court, District court, Magistrates court, registries and other matters mentioned in Schedule 1.
It further states in sect 134, that the Supreme Court of QLD ACT 1991 prevails in all areas of inconsistency over the 1995 Act.
Now, Schedule 1 has jurisdiction over the civil, criminal and appellate courts, Parties & Proceedings, Defence, Service of Documents, Pleadings, Disclosure, Preservation of Rights & Property, Ending Proceedings Early, Court Supervision, Evidence, Jurisdiction of Judicial Registrars, Trails & Other Hearings, Particular Proceedings, probate, Contempt of Court, Vexatious Proceedings, Trusts, Costs, Appeals etc, Money Orders Enforcement, Foreign Judgment Enforcements, Corporations, Miscellaneous.
This, in essence, states that the Governor in Council may make Rules of Court for all of the above. Consider carefully what is involved in each of these areas.
Not the judges. The Governor in Council.
And of course, the Governor was moved into the role of Parliamentary Secretary 29 January 1999. See Constitution (Parliamentary Secretaries) Act ©The State of QLD 1996. On the same day the QLD Constitution 1867 reprint was proclaimed, thus verifiying the position of Parliamentary Secretary under its Constitution.
Now, note the Supreme Court Act 1991 states the Governor in Council.
QUESTION: So, who are the members of the Council?
We now go to the Queensland Constitution 2001 (Page 13).
Chapters 1 & 2 refer to the Legislative Assembly and the Governor. But in Chapter 3, Part 1, sect 27 we read – “The Governor in Council is the Governor acting with the advice of Executive Council.”
Clearly the Governor and the Executive council are making the rules of court. Which is not and has never been the Governor’s role.
Sect 30 – “The Constitution Act 1867 contains provisions about the office of Governor.
QUESTION: Who are the members of the Executive Council?
At Chapter 3, Part 4, sect 48, those “appointed as members…by the Governor…..”
This Executive council is given separate law makings Powers of the State at Chapter 3, Part 5, Sect 51, where is states, the Executive Government of the State of QLD (the “State) = The State may exercise its powers……
Chapter 3 has created another House of Parliament in QLD. A matter (among others) which clearly required a Referendum of the People. In this Chapter, the Governor is created as a separate entity, capable of approving laws and acts which do not answer to either the people of QLD, or the courts.
In QLD now, the judges do not make the rules of court, the Government of QLD does. This removes the Separation of Powers and Common Law.
In fact, the Legislative Assembly has no more role than to appear to create discussion of proposed laws, acts, etc as developed by the Executive Council and stamped treasonously by the Governor/Parliamentary Secretary.
Although the people may still vote for members of the Legislative Assembly, they are given a furphy in that their vote leads to no control whatsoever of the laws of this state, as the LA is not part of the Governor in Council which decides the Rules of Court.
Also the Governor is not stated as the leader of the Executive Council but acts ‘with their advice” and “in council”.
The Premier of Qld, must always be the leader of the Executive Body. In Chapter 3, Part 5, Sect 55 (1) –
“A minister may delegate a power of the State to an appropriately qualified officer of the State.”
“officer of the state” means –
(a) a chief executive………………….
As the Leader of the Executive is chosen by the Executive, this is in line with Sect 55 (1). If the Governor is not the leader, then this person – the Premier – must be in leadership for both the Executive and the governor.
Hence this leader is in a position of almost dictatorial power in QLD.
In order to see the result of these situations in the Courts, go to the Court of Appeals QLD - http://www.austlii.edu.au/au/cases/qld/QCA/
Cases include
· Glasgow v. Hall [2007] QCA 19 (2 February 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/19.html
· Burns v. State of Queensland & Croton [2007] QCA 240 (27 July 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/240.html
· Watts v. Ellis [2007] QCA 234 (23 July 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/234.html
· Dore & Ors v. Penny [2006] QSC 125 (5 May 2006) http://www.austlii.edu.au/au/cases/qld/QCA/2005/150.html
· Wilson v Raddatz [2006] QCA 392 http://archive.sclqld.org.au/qjudgment/2006/QCA06-392.pdf
Reference Notes for the sections listed.
Judiciary Act 1903 http://www.foundingdocs.gov.au/resources/transcripts/cth8_doc_1903.pdf
Rules of Court.
86. The Justices of the High Court or a majority of them may make Rules of Court not inconsistent with this Act for carrying this Act into effect, and in particular for the following matters, that is to say :—
(a) Appointing and regulating the sittings of the High Court and of the Justices;
(b) Regulating procedure pleading and practice in the High Court in civil or criminal matters in the exercise both of its original and of its appellate jurisdiction;
(c) Regulating any matters relating to the duties of the officers of the High Court and of the Marshal and his
Deputies and officers;
(d) Prescribing the forms to be used for the purposes of the proceedings of the High Court;
(e) Prescribing and regulating the fees to be charged by practitioners practising in the High Court for the
work done by them in relation to proceedings in the Court and for the taxation of their bills of costs, either
as between party and party or as between solicitor and client;
(f) Prescribing the fees to be collected by the officers of the High Court and by the Marshal and his officers in respect of proceedings in the Court or of the execution of the process thereof;
(g) Prescribing the extent to which the provisions of this Act shall be applicable to the Courts of Territories of the Commonwealth;
(h) Generally regulating all matters of practice and procedure in the High Court and other federal courts, and so far as is necessary in courts of federal jurisdiction.
High Court of Australia Act 1979 http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/5D4B7E7835DF0683CA256FBF0027DC00?OpenDocument
48 Rules of Court
The power of the Justices or of a majority of them to make Rules of Court under section 86 of the Judiciary Act 1903 extends to making any Rules of Court required or permitted by this Act to be made or necessary or convenient to be made for carrying into effect the provisions of this Act.
Federal Magistrates Act 1999 http://www.fmc.gov.au/law/html/act.html
Part 6 - Practice and procedure
Division 8 - Rules of Court
81 Rules of Court
(1) The Federal Magistrates, or a majority of them, may make Rules of Court:
(a) making provision for or in relation to the practice and procedure to be followed in the Federal Magistrates Court (including the practice and procedure to be followed in registries of the Federal Magistrates Court);
or
(b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Magistrates Court;
or
(c) prescribing matters required or permitted by:
(i) any other provision of this Act;
or
(ii) any other law of the Commonwealth;
to be prescribed by the Rules of Court.
(2) Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.
(3) The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under this Act or another Act:
(a) as if a reference to a legislative instrument were a reference to a rule of court;
and
(b) as if a reference to a rulemaker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates;
and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 20 of this Act.
(4) Despite the fact that section 16 of the Legislative Instruments Act 2003 does not apply to rules of court made by the Court under this Act or another Act, the Department may provide assistance in the drafting of any of those Rules if the Chief Federal Magistrate so desires.
Legislative Instruments Act 2003 http://www.austlii.edu.au/au/legis/cth/consol_act/lia2003292/s4.html#instrument
SECT 9
Rules of court are not legislative instruments
Rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court are not legislative instruments for the purposes of this Act.
Note: Rules of court are treated as if they were legislative instruments by express amendment of the legislation providing for them to be made.
legislative instrument has the meaning given by section 5 and includes instruments that are declared to be legislative instruments under section 6 but does not include:
(a) instruments that are declared not to be legislative instruments under section 7; or
(b) instruments to which section 9 applies.
Acts Interpretation Act 1901 http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s28.html
SECT 28
Rules of Court
(1) In any Act, unless the contrary intention appears, the expression “Rules of Court” when used in relation to any court shall mean rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court.
(2) The power of such authority to make Rules of Court shall, unless the contrary intention appears, include a power to make Rules of Court for the purpose of any Act which directs or authorizes anything to be done by Rules of Court.
Supreme Court of Queensland Act 1991 http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SuprCrtQA91.pdf
118 Rule-making power
(1) The Governor in Council may make rules of court under this Act for—
(a) the practices and procedures of the Supreme Court, the District Court or the Magistrates Courts or their registries or another matter mentioned in schedule 1; (see Schedule 1 (Subject matter for rules))
or
(b) the admission of persons to the legal profession under the Legal Profession Act 2007, including fees relating to admission;
or
(ba) the assessment of costs for the Legal Profession Act 2007, part 3.4, division 7; or
(c) appeals from the Mental Health Court; or
(d) any law giving jurisdiction to the Supreme Court, the District Court or the Magistrates Courts, including a law of the Commonwealth.
134 Act to prevail over Supreme Court Act 1995
(1) If a provision of the Supreme Court Act 1995 is inconsistent with this Act, this Act prevails to the extent of the inconsistency.
(2) In this section—
inconsistency includes—
(a) direct inconsistency; and
(b) covering the field inconsistency.
this Act includes the Uniform Civil Procedure Rules made under this Act.
Schedule 1 Subject matter for rules Section 118
Part 1 General
1 Jurisdiction generally
Jurisdiction of the courts, including civil, criminal and any appellate jurisdiction.
Part 2 Civil proceedings
2 Starting civil proceedings
Starting civil proceedings in the courts, including, for example, the following—
(a) originating process;
(b) where to start proceedings;
(c) for the Supreme Court—cross-vesting of jurisdiction.
3 Parties and proceedings
Parties and proceedings, including, for example, the following—
(a) several causes of action and parties in a civil proceeding, including reconstitution of proceedings and representative parties;
(b) multiple civil proceedings;
(c) interpleader orders;
(d) civil proceedings by or against a business or person under a legal incapacity;
(e) third party procedure.
4 Notices of intention to defend
Notices of intention to defend in civil proceedings.
5 Service of documents
Service of documents for civil proceedings, including, for example, the following—
(a) the various types of service, including personal service and ordinary service;
(b) service outside Australia and service of foreign legal process in Queensland.
6 Pleadings
Pleadings, including, for example, the following—
(a) matters in pleadings and particulars;
(b) progress of pleadings;
(c) particular pleadings, including statements of claim and counterclaims.
7 Disclosure
In civil proceedings—
(a) disclosure by parties, including disclosure and inspection of documents and interrogatories; or
(b) non-party disclosure; or
(c) admissions; or
(d) disclosure of experts’ reports and other material to which legal professional privilege may attach, including by direction or order of the court.
8 Preservation of rights and property
Preservation of rights and property in civil proceedings, including, for example, the following—
(a) inspection, detention and preservation of property;
(b) for the Supreme Court and the District Court—
(i) injunctions, including Mareva injunctions and Anton Piller orders;
or
(ii) receivers;
or
(iii) sales by court order.
9 Ending proceedings early
(1) Ending civil proceedings early, including, for example, the following—
(a) ending proceedings because of default;
(b) summary decisions;
(c) discontinuance and withdrawal;
(d) alternative dispute resolution processes, including, for example, the following—
(i) experience and qualifications for approval as a mediator or case appraiser;
(ii) persons who must pay ADR costs and the way, and time within which, ADR costs are to be paid;
(iii) jurisdiction of a case appraiser at a case appraisal;
(iv) ability of a mediator or case appraiser to seek independent advice or information;
(v) time within which an ADR process should be finished (which may be a time specified by the court);
(vi) conduct of an ADR process;
(vii) confidentiality of a mediated agreement or case appraiser’s decision;
(viii)applying procedures and other matters similar to those applying to arbitrations under the Commercial Arbitration Act 1990;
(ix) imposing penalties against a party who fails to cooperate in an ADR process;
(e) conciliation processes, including, for example, the following—
(i) experience and qualifications for approval, under the Magistrates Courts Act 1921, section 42T, as a conciliator;
(ii) the way a conciliator is to be appointed under the Magistrates Courts Act 1921, section 42F;
(iii) time within which conciliation processes should be finished;
(iv) requirements about recording an agreement under the Magistrates Courts Act 1921, section 42M;
(v) requirements for parties to help conciliators;
(vi) ability of a conciliator to seek independent advice or information;
(vii) appointment of a replacement conciliator;
(viii)abandonment of a conciliation process;
(ix) information to be contained in the register to be kept under the Magistrates Courts Act 1921, section 42X;
(x) form of a conciliation certificate;
(f) offers to settle and payments by defendants;
(g) the referral of cases to arbitration.
(2) In this section—
conciliation certificate means a certificate mentioned in the Magistrates Courts Act 1921, section 42L.
conciliation process see the Magistrates Courts Act 1921, section 42D.
conciliator see the Magistrates Courts Act 1921, section 2.
10 Court supervision
Court supervision of civil proceedings, including, for example, the following—
(a) directions about the conduct of proceedings;
(b) consequences of failing to comply with rules, directions or court orders;
(c) amendments, both with and without leave;
(d) continuation of proceedings after delay.
11 Evidence
(1) The taking of evidence generally, including, for example, the following—
(a) the way evidence may be given;
(b) dispensing with the rules of evidence;
(c) taking evidence out of court;
(d) taking evidence for future claims;
(e) subpoenas;
(g) affidavits and the exchange of correspondence instead of affidavit evidence;
(h) the obtaining of evidence by the court, including, for example, the calling of witnesses.
(2) Expert evidence generally, including, for example, the following—
(a) conferring immunity from action on experts in relation to reports tendered in evidence;
(b) matters relating to court experts;
(c) the appointment by the court of an expert to prepare a report about a dispute before proceedings are started for tendering as evidence in proceedings started later in relation to the dispute;
(d) defining the duty of an expert witness in relation to the court and the parties;
(e) prescribing the basis of and conditions for the admissibility of expert evidence.
12 Jurisdiction of judicial registrars and registrars
Jurisdiction of judicial registrars and registrars.
Note—
judicial registrar means a judicial registrar of the District Court—see schedule 2.
13 Trials and other hearings
Trials and other hearings of civil proceedings, including, for example, the following—
(a) practice lists;
(b) listing applications for hearing and setting trial dates;
(c) the conduct of trials;
(d) decisions without pleadings or without hearings;
(e) separate decisions on questions;
(f) assessors and special referees;
(g) assessment of damages;
(h) simplified procedures for minor debt claims and other claims.
14 Particular proceedings
Particular civil proceedings, including, for example, the following—
(a) the taking of accounts;
(b) proceedings for damages for personal injury or death;
(c) the payment of amounts into court;
(d) for the Supreme Court—
(i) judicial review proceedings; or
(ii) proceedings for the issue of a writ of habeas corpus.
15 Probate
For the Supreme Court, probate, including, for example, the following—
(a) applications for grants of probate or letters of administration and the documents required;
(b) resealing grants;
(c) proceedings under the Public Trustee Act 1978;
(d) caveats objecting to grants, orders to administer or resealing of grants;
(e) contested proceedings.
16 Contempt of court
Contempt of court, including, for the District Court, contempt of the District Court as constituted by a judicial registrar, and proceedings for failure to comply with an order, other than an order for the payment of an amount.
Note—
judicial registrar means a judicial registrar of the District Court—see schedule 2.
16A Vexatious proceedings
Restriction of vexatious proceedings within the meaning of the Vexatious Proceedings Act 2005.
17 Trusts
For the Supreme Court, trusts.
18 Costs
Costs in civil proceedings, including, for example, the following—
(a) security for costs;
(b) entitlement to recover costs of a proceeding;
(c) costs of a party in a proceeding;
(d) assessment of costs, including—
(i) the approval of registrars, and the appointment and removal of other persons, to assess costs under the Uniform Civil Procedure Rules 1999;
or
(ii) powers of costs assessors to assess costs;
or
(iii) procedures;
or
(iv) review of assessments.
19 Appeals, applications and cases stated to Court of Appeal
Appeals, applications and cases stated to the Court of Appeal.
20 Enforcement of money orders
Enforcement of orders, including, for example, the following—
(a) enforcement hearings;
(b) enforcement warrants, including—
(i) enforcement warrants for entry on to and deliveryof possession of land;
or
(ii) enforcement warrants for seizure and sale of property; r
(iii) enforcement warrants for seizure and delivery of specified goods;
or
(iv) enforcement warrants for seizure and detention of property;
or
(v) enforcement warrants for redirection of debts or earnings;
or
(vi) enforcement warrants for payment of the money order debt by instalments; or
(vii) for the Supreme Court—enforcement warrants for charging orders and stop orders;
(c) powers of enforcement officers.
21 Reciprocal enforcement of foreign judgments
The reciprocal enforcement of foreign judgments, including under a Commonwealth law.
22 Corporations
Any law, including a Commonwealth law, under which the Supreme Court exercises jurisdiction in relation to corporations or similar entities.
23 Miscellaneous matters
The following matters—
(a) documents filed in the registries;
(b) filing, receipt, service, issue or transmission electronically of approved forms and other documents and material for use in, or in connection with, proceedings, including, electronic representations or equivalents of seals, stamps and signatures and their validity;
(c) the functions of the registries generally;
(d) the rules applicable to lawyers acting for parties in proceedings in the court;
(e) transitional arrangements.
Part 3 Criminal proceedings
24 Practice and procedure in criminal jurisdiction
Practice and procedure in the courts’ criminal jurisdiction (including any appellate jurisdiction) generally, including, for example, the following—
(a) forms for proceedings;
(b) applications;
(c) lawyers’ and court’s duties;
(d) pre-trial matters, including, for example, subpoenas and pre-trial directions and rulings;
(e) regulating trial proceedings;
(g) evidence;
(h) the custody and inspection of exhibits;
(i) the recording of proceedings and access to the records;
(j) appeals, including, appeals to the Court of Appeal and the District Court;
(k) listing trials, sentences, applications and appeals for hearing, and setting hearing dates;
(l) filing, receipt, service, issue or transmission electronically of forms and other documents and material for use in, or in connection with, proceedings, including, electronic representations or equivalents of seals, stamps and signatures and their validity.
Part 4 Miscellaneous
25 Matter used in proceedings
The disposal or destruction of matter held by the court that was used in a proceeding and is unclaimed.
Constitution of Queensland 2001 http://www.constitution.qld.gov.au/pdf/ConstitutionAct.pdf
CHAPTER 1—PRELIMINARY
1 Short title
This Act may be cited as the Constitution of Queensland 2001.
2 Commencement
This Act commences on 6 June 2002.
3 Object
This Act declares, consolidates and modernises the Constitution of Queensland.
Note –
However, this Act does not consolidate the following constitutional provisions because of the special additional procedures, including approval by the majority of electors at a referendum, that may be required—
Constitution Act 1867, sections 1, 2, 2A, 11A, 11B and 53
Constitution Act Amendment Act 1890, section 2
Constitution Act Amendment Act 1934, sections 3 and 4.
Further, this Act does not consolidate the Constitution Act 1867, sections 30 and 40.
4 References to the Sovereign
A reference in this Act to the Sovereign is a reference to the Queen or King for the time being, and, if necessary, includes the Queen’s or King’s heirs and successors.
5 Note in text is part of this Act
A note in the text of this Act is part of this Act.
CHAPTER 2—PARLIAMENT
PART 1—CONSTITUTION AND POWERS OF PARLIAMENT
6 The Parliament
The Constitution Act 1867, section 2A provides for the Parliament in Queensland.
Note—
The Constitution Act 1867, section 2A is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see Attachment 1 for these provisions)
Note also the Constitution Act Amendment Act 1934, section 3 (Parliament not to be altered in the direction of re-establishing the Legislative Council or other body except in accordance with this section).(see attachment 3 for these provisions)
7 Legislative Assembly
The Constitution Act 1867, section1 provides for a Legislative Assembly in Queensland.
Note—
The Constitution Act 1867, section 1 is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see attachment 1 for a copy of these provisions)
8 Law-making power
The Constitution Act 1867, section 2 provides for law-making power in Queensland.
Notes—
The Constitution Act 1867, section 2 is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see attachment 1 for a copy of these provisions).
See also the Australia Act 1986 (Cwlth), sections 2 (Legislative powers of Parliaments of States), 3 (Termination of restrictions on legislative powers of Parliaments of States) and 6 (Manner and form of making certain State laws).
9 Powers, rights and immunities of Legislative Assembly
(1) The powers, rights and immunities of the Legislative Assembly and its members and committees are—
(a) the powers, rights and immunities defined under an Act;
and
(b) until defined under an Act—the powers, rights and immunities, by custom, statute or otherwise, of the Commons House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth.
Note—
Date of establishment of the Commonwealth—1 January 1901.
(2) In this section— “rights” includes privileges.
10 Members of Legislative Assembly
The Legislative Assembly is to consist of directly elected members who are eligible (see S21) to be elected by the inhabitants of the State who are eligible (see Electoral Act 1992) to elect members.
11 Number of members of Legislative Assembly
The Legislative Assembly is to consist of 89 members.
12 Division of State into electoral districts
The State is to be divided into the same number of electoral districts as there are members of the Legislative Assembly.
Note—
The process for dividing the State into electoral districts is provided for by the Electoral Act 1992.
13 1 member for each electoral district
Each member of the Legislative Assembly is to represent 1 of the electoral districts.
14 Power to alter system of representation
The Parliament under an Act may—
(a) vary the number of members to be elected to the Legislative Assembly;
and
(b) vary the electoral districts of the State that are to be represented in the Legislative Assembly;
and
(c) establish new and other electoral districts;
and
(d) vary and regulate the appointment of returning officers and make any new and other provision that it considers convenient for the issuing and return of writs for the election of members to the Legislative Assembly and the time and place of holding the elections.
PART 2—PROCEDURAL REQUIREMENTS FOR THE LEGISLATIVE ASSEMBLY/\
15 Summoning, proroguing and dissolving the Legislative Assembly
(1) The Governor may summon the Legislative Assembly in the Sovereign’s name by instrument under the Public Seal of the State.
(2) The Governor may prorogue or dissolve the Legislative Assembly by proclamation or otherwise whenever the Governor considers it expedient.
16 Duration of Legislative Assembly
The Constitution Act Amendment Act 1890, section 2 provides for the duration of the Legislative Assembly.
Note—
The Constitution Act Amendment Act 1890, section 2 is subject to the Constitution Act Amendment Act 1934, section 4 (Duration of Legislative Assembly not to be extended except in accordance with this section).(see attachment 2 for a copy of these provisions)
17 Continuation of Legislative Assembly despite end of Sovereign’s reign
If the Sovereign’s reign ends, the Legislative Assembly, as constituted immediately before the end of the reign, continues in existence, subject to dissolution under section 15(2), for as long as it would have continued if
the Sovereign’s reign had not ended.
18 Time and place for sessions of Legislative Assembly
(1) The Governor may set the times and places in Queensland for sessions of the Legislative Assembly that the Governor considers appropriate.
(2) The Governor may change the times and places if the Governor considers change advisable and more consistent with general convenience and the public welfare.
(3) The Governor must give sufficient notice of a change.
19 Minimum sitting requirement for Legislative Assembly
(1) There must be at least 2 sittings of the Legislative Assembly in every calendar year.
(2) Six months must not pass between a sitting of the Legislative Assembly and the next sitting of the Legislative Assembly.
PART 3—APPROPRIATION FOR LEGISLATIVE ASSEMBLY
20 Separate appropriation for Legislative Assembly
(1) Legislation appropriating the consolidated fund for the Legislative Assembly and the parliamentary service, including salaries payable under the Parliament of Queensland Act 2001 and the Parliamentary Service Act 1988, is to be contained in a Bill separate from any other Bill about any appropriation for any other purpose.
(2) This section is to be read with the Financial Administration and Audit Act 1977.
PART 4—MEMBERS
Division 1—Generally
21 Eligibility to be a candidate and to be elected as a member
(1) A person is eligible to be a candidate, and to be elected, as a member of the Legislative Assembly, if the person—
(a) is an adult Australian citizen living in Queensland;
and
(b) has any further qualification required under an Act;
and
(c) is not disqualified under an Act.
Note—
For an example of subsection (1)(b) and (c), see the Parliament of Queensland Act 2001, section 64 (Qualifications to be a candidate and be elected a member).
(2) Subsection (1) is subject to any conditions imposed under an Act.
22 No member to sit or vote without first taking oath or making affirmation
(1) No member may sit or vote in the Legislative Assembly unless the member has taken or made the oath or affirmation of allegiance and of office in schedule 1. (Schedule 1 (Oaths and affirmations))
(2) The oath must be taken or the affirmation must be made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
(3) A member “takes” the member’s seat on taking the oath or making the affirmation.
Division 2—Members who are Ministers or Parliamentary Secretaries
23 Ministers
Chapter 3, part 3 (Chapter 3 (Governor and Executive Government), part 3 (Cabinet and Ministers of the State) contains provisions about the appointment of members of the Legislative Assembly as Ministers or acting Ministers.
24 Appointment of Parliamentary Secretaries
(1) The Governor in Council may appoint members of the Legislative Assembly as Parliamentary Secretaries.
(2) However, a Minister or member of Executive Council may not be appointed as a Parliamentary Secretary.
25 Functions of Parliamentary Secretary
A Parliamentary Secretary has the functions decided by the Premier.
26 Length of Parliamentary Secretary’s appointment
(1) The appointment of a member of the Legislative Assembly as a Parliamentary Secretary ends on the polling day for the next general election after the appointment.
(2) However, the appointment ends before the polling day when any of the following happen—
(a) the member’s seat becomes vacant otherwise than because the Legislative Assembly is dissolved or expires by the passage of time;
(b) the member resigns as Parliamentary Secretary by written notice of resignation given to the Premier;
(c) the member is appointed as a Minister or member of Executive Council or is appointed to act as a Minister under section 46; Section 46 (Member may act for a Minister)
(d) the appointment is ended by the Governor in Council under subsection (3).
(3) The Governor in Council, at any time, may end the appointment for reasons the Governor in Council considers sufficient or for no reason.
(4) In this section—
“general election” means an election for the members of the Legislative Assembly.
CHAPTER 3—GOVERNOR AND EXECUTIVE GOVERNMENT
PART 1—INTERPRETATION
27 Governor in Council
The Governor in Council is the Governor acting with the advice of Executive Council.
PART 2—GOVERNOR
28 Definition for pt 2
In this part—
“Royal Sign Manual” means the signature or royal hand of the Sovereign.
29 Governor
(1) There must be a Governor of Queensland.
(2) The Governor must be appointed by commission under the Royal Sign Manual.
30 Office of Governor
The Constitution Act 1867, sections 11A and 11B contain provisions about the office of Governor.
Note—
The Constitution Act 1867, sections 11A and 11B are subject to section 53 (Certain measures to be supported by referendum) of that Act. (See attachment 1 for a copy of these provisions.)
31 Requirements concerning commission and oath or affirmation
(1) Before undertaking any duties as Governor, a person appointed as Governor must, in the presence of the Chief Justice, or the next most senior judge of the Supreme Court of Queensland who is able to act, (the “judicial officer”) and of at least 2 members of Executive Council—
(a) cause the commission appointing the person as Governor to be read and published at the seat of government in the State;
and
(b) take or make the oath or affirmation of allegiance and of office in schedule 1,( Schedule 1 (Oaths and affirmations) subject to and in accordance with the law and practice of the State.
(2) The judicial officer must administer the oath or affirmation.
32 Termination of appointment as Governor
(1) The appointment of a person as Governor may be terminated only by instrument under the Royal Sign Manual.
(2) The instrument takes effect on its publication in the gazette or at a later time stated in the instrument.
33 General power of Governor
The Governor is authorised and required to do all things that belong to the Governor’s office under any law.
34 Power of Governor—Ministers
Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, is not subject to direction by any person and is not limited as to the Governor’s sources of
advice.
35 Power of Governor—removal or suspension of officer
(1) This section does not limit the power of the Governor under another provision of this Act or another Act.
(2) To the extent that it is within the Governor’s power and if the Governor considers there is sufficient reason, the Governor may remove or suspend a person holding an office or place under an appointment made in the name or under the authority of the Sovereign.
36 Power of Governor—relief for offender
(1) This section does not limit the operation of another Act.
(2) In relation to an offence against a law of the State, the Governor may grant the offender, in the name and on behalf of the Sovereign—
(a) a pardon, a commutation of sentence or a reprieve of execution of sentence for a period the Governor considers appropriate;
or
(b) a remission of a fine, penalty, forfeiture or other consequence of conviction of the offender.
(3) The grant may be unconditional or subject to lawful conditions.
37 Power of Governor—public seal
The Governor may keep and use the Public Seal of the State for sealing all instruments made or passed in the Sovereign’s name.
38 Continued use of seal despite end of Sovereign’s reign
(1) This section applies if the Sovereign’s reign ends and, immediately before the end of the reign, a seal for Queensland issued by the Sovereign is in existence.
(2) The seal, until a new seal is issued by the next Sovereign, may continue to be used as if the Sovereign’s reign had not ended.
39 Statutory powers when Sovereign personally in State
(1) When the Sovereign is personally present in the State, any power under an Act exercisable by the Governor may be exercised by the Sovereign.
(2) The Governor has the same powers in relation to an act done, or an instrument made, by the Sovereign under this section as the Governor has in relation to an act done, or an instrument made, by the Governor himself or herself.
(3) This section does not affect or prevent the exercise of any power under an Act by the Governor.
(4) In this section, references to the Governor or to the Sovereign include references to the Governor, or to the Sovereign, acting with the advice of Executive Council.
40 Delegation by Governor to Deputy Governor
(1) The Governor may delegate all or any of the Governor’s powers to the person mentioned in subsection (2) during and only during any or all periods—
(a) the Governor is temporarily absent for a short period from the seat of government, except when administering the Government of the Commonwealth;
or
(b) the Governor is ill and there are reasonable grounds for believing the illness will be of short duration.
(2) The person to whom the Governor’s powers may be delegated is—
(a) the Lieutenant-Governor;
or
(b) if there is no Lieutenant-Governor in the State and able to act—the Chief Justice;
or
(c) if there is no Chief Justice in the State and able to act—the next most senior judge of the Supreme Court of Queensland who is in the State and able to act.
(3) The delegation must be by instrument under the Public Seal of the State and specify the powers given to the delegate.
(4) A person exercises the Governor’s powers under a delegation as Deputy Governor.
41 Administration of Government by Acting Governor
(1) The person mentioned in subsection (3) must administer the Government of the State during any period—
(a) the office of Governor is vacant;
or
(b) the Governor assumes the administration of the Government of the Commonwealth;
or
(c) the Governor is absent from the State and the Governor’s powers are not being exercised by a Deputy Governor under section 40;
or
(d) the Governor is incapable of performing the duties of office and the Governor’s powers are not being exercised by a Deputy Governor under section 40.
(2) The Governor is taken not to be absent from the State for subsection (1)(c) if the Governor is beyond the boundaries of the State in the course of travel from 1 part of the State to another part of the State.
(3) The person who must administer the Government of the State is—
(a) the Lieutenant-Governor;
or
(b) if there is no Lieutenant-Governor in the State and able to act—the Chief Justice;
or
(c) if there is no Chief Justice in the State and able to act—the next most senior judge of the Supreme Court of Queensland who is in the State and able to act.
(4) A person administering the Government of the State under this section acts as Governor and performs the Governor’s functions and exercises the Governor’s powers as Acting Governor.
(5) Before assuming the administration of the Government of the State, the person must have previously taken or made, or must take or make as soon as is reasonably practicable after the occasion arises for the person to administer the State, the oath or affirmation of allegiance and of office in schedule 1. (Schedule 1 (Oaths and affirmations))
(6) The oath must be taken or the affirmation made in the presence of—
(a) the Chief Justice or the next most senior judge of the Supreme Court of Queensland who is able to act (the “judicial officer”);
and
(b) at least 2 members of Executive Council.
(7) The judicial officer must administer the oath or affirmation.
(8) The person must not continue to administer the Government of the State after the Governor or some other person holding an office prior in title to administer the Government of the State under subsections (1) and (3) has, by proclamation, given notice that the Governor or other person has assumed or resumed, or is about to assume or resume, the administration of the Government of the State.
PART 3—CABINET AND MINISTERS OF THE STATE
42 Cabinet
(1) There must be a Cabinet consisting of the Premier and a number of other Ministers appointed under section 43.
(2) The Cabinet is collectively responsible to the Parliament.
43 Appointment of Ministers of the State
(1) The Governor, by proclamation, may declare the offices to which persons may be appointed as Ministers of the State.
(2) The Governor, by commission, may appoint a person as a Minister of the State.
(3) To remove any doubt, it is declared that the Attorney-General is a Minister.
(4) The maximum number of Ministers at any time is 19.
(5) A Minister must, before entering on the duties of the Minister’s office, take or make the oath or affirmation of allegiance and of office in schedule 1.( Schedule 1 (Oaths and affirmations))
(6) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
44 Administrative arrangements
The Governor in Council, by order published in the gazette, may make administrative arrangements doing either or both of the following—
(a) distributing the public business, or any of that business, among the Ministers;
(b) declaring either or both of the following—
(i) the administrative units, or any of the administrative units, or the parts of the administrative units administered by each Minister respectively, or any Minister;
(ii) the Acts, or any of the Acts, or the parts of the Acts administered by each Minister respectively, or by any Minister.
45 Minister may act for another Minister
(1) The Governor or Premier, in writing, may appoint a Minister to act as another Minister.
(2) The Minister may be appointed to perform all or any of the other Minister’s functions and exercise all or any of the other Minister’s powers.
(3) However, an appointment by the Premier may not be for a period of more than 14 days.
46 Member may act for a Minister
(1) Without limiting section 45, the Governor, by proclamation, may appoint a member of the Legislative Assembly to act as a Minister for any or all periods the Minister is—
(a) absent from the State in the course of the duties of the office;
or
(b) absent on leave given under section 47.
(2) The member may be appointed to perform all or any of a Minister’s functions and exercise all or any of a Minister’s powers.
(3) The member, before entering on the duties of the office, must take or make the oath or affirmation of allegiance and of office in schedule 1.( Schedule 1 (Oaths and affirmations))
(4) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
(5) A person who is already a Minister may not be appointed under subsection (1).
(6) An appointment under subsection (1) has effect despite section 43(4).
47 Sick leave
The Governor, by proclamation, may give a Minister who is ill leave of absence with pay for a period of not more than 6 months.
PART 4—EXECUTIVE COUNCIL
48 Executive Council
(1) There must be an Executive Council for the State.
(2) Executive Council consists of the persons appointed as members of the Executive Council by the Governor by instrument under the Public Seal of the State.
(3) A member of Executive Council must, before entering on the duties of the member’s office, take or make the oath or affirmation of office and of secrecy in schedule 1. (Schedule 1 (Oaths and affirmations))
(4) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
49 Length of appointment as member of Executive Council
The appointment of a person as a member of Executive Council ends only on the happening of either of the following—
(a) the person’s resignation as a member of Executive Council;
(b) the person’s removal as a member of Executive Council by the Governor.
50 Meetings of Executive Council
(1) The Governor must preside over a meeting of Executive Council.
(2) However, if, for good reason, the Governor can not preside, a meeting of Executive Council must be presided over by—
(a) if the Governor has appointed a member of Executive Council to preside—the member;
or
(b) if the Governor has not appointed a member to preside—the member who is taken to be the most senior member present.
(3) Executive Council must not deal with any business at a meeting unless—
(a) it has been summoned to meet by the Governor’s authority;
and
(b) at least 2 members, other than any presiding member, are present for the entire meeting.
PART 5—POWERS OF THE STATE
Division 1—General
51 Powers of the State
(1) The Executive Government of the State of Queensland (the “State”) has all the powers, and the legal capacity, of an individual.
(2) The State may exercise its powers—
(a) inside and outside Queensland;
and
(b) inside and outside Australia.
(3) This part does not limit the State’s powers.
Example—
This part does not affect any power a Minister has apart from this part to bind the State by contract.
Division 2—Commercial activities
52 Definitions for div 2
In this division—
“commercial activities” includes—
(a) commercial activities that are not within the ordinary functions of the State;
and
(b) commercial activities of a competitive nature;
and
(c) activities declared by an Act to be commercial activities; but does not include activities declared by an Act not to be commercial activities.
“State” includes a public sector unit.
53 Commercial activities by State
(1) The State may carry out commercial activities.
(2) This section is sufficient statutory authority for the State to carry out a commercial activity.
(3) Commercial activities may be carried out—
(a) without further statutory authority;
and
(b) without prior appropriation from the consolidated fund for the purpose.
(4) Commercial activities may be carried out—
(a) inside and outside Queensland;
and
(b) inside and outside Australia.
54 Commercial activities by Minister
A Minister may carry out commercial activities for the State.
55 Delegation by Minister
(1) A Minister may delegate a power of the State to an appropriately qualified officer of the State.
(2) An officer of the State may subdelegate the delegated power to another appropriately qualified officer of the State.
(3) In this section—
“appropriately qualified”, in relation to a delegated power, includes having the qualifications, experience or standing appropriate to exercise the power.
Example of standing—
A person’s level of employment in the entity in which the person is employed.
“officer of the State” means—
(a) a chief executive, or employee, of a public sector unit;
or
(b) an officer of the public service.
ATTACHMENT 1 sections 6, 7, 8 and 30
CONSTITUTION ACT 1867, SECTIONS 1, 2, 2A, 11A, 11B AND 53
The Constitution Act 1867—
1 Legislative Assembly
There shall be within the said Colony of Queensland a Legislative Assembly.
2 Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever.
2A The Parliament
(1) The Parliament of Queensland consists of the Queen and the Legislative Assembly referred to in sections 1 and 2.
(2) Every Bill, after its passage through the Legislative Assembly, shall be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen.
11A Office of Governor
(1) The Queen’s representative in Queensland is the Governor who shall hold office during Her Majesty’s pleasure.
(2) Abolition of or alteration in the office of Governor shall not be effected by an Act of the Parliament except in accordance with section 53.
(3) In this Act and in every other Act a reference to the Governor shall be taken—
(a) to be a reference to the person appointed for the time being by the Queen by Commission under Her Majesty’s Royal Sign Manual to the office of Governor of the State of Queensland; and
(b) to include any other person appointed by dormant or other Commission under the Royal Sign Manual to administer the Government of the State of Queensland.
11B Definition of Royal Sign Manual
In section 11A the expression “Royal Sign Manual” means the signature or royal hand of the Sovereign.
53 Certain measures to be supported by referendum
(1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely—
sections 1, 2, 2A, 11A, 11B; and this section 53 shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.
(2) On a day not sooner than two months after the passage through the Legislative Assembly of a Bill of a kind referred to in subsection (1) the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Elections Act 1915–1973 and of any Act amending the same or of any Act in substitution therefor.
Such day shall be appointed by the Governor in Council by Order in Council.
(3) When the Bill is submitted to the electors the vote shall be taken in such manner as the Parliament of Queensland prescribes.
(4) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for reservation thereof for the signification of the Queen’s pleasure.
(5) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (1) is presented for assent by or in the name of the Queen.
Act 24 Geo. 5 No. 35 preserved
(6) The provisions of this section shall in no way affect the operation of The Constitution Act Amendment Act of 1934.
ATTACHMENT 2 section 16
CONSTITUTION ACT AMENDMENT ACT 1890,
SECTION 2
The Constitution Act Amendment Act 1890—
2 Duration of Legislative Assembly to be 3 years only
Every Legislative Assembly hereafter to be summoned and chosen shall continue for 3 years from the day appointed for the return of the writs for choosing the same, and no longer; subject nevertheless to be sooner
dissolved by the Governor.
CONSTITUTION ACT AMENDMENT ACT 1934,
SECTION 4
The Constitution Act Amendment Act 1934—
4 Duration of Legislative Assembly not to be extended except in accordance with this section
(1) The provisions of section two of “The Constitution Act Amendment Act of 1890” (referred to in the preamble to this Act) shall not be amended in the direction of extending the period of three years, which, as provided by the said section two, is the period for which any Legislative Assembly, now or hereafter summoned and chosen, shall continue from the day appointed for the return of the writs for choosing the same and no longer (subject, nevertheless, to be sooner dissolved by the Governor), nor shall any other Act or law relating to the Constitution be passed extending such period of three years as aforesaid, except in the manner provided by this section.
(2) A Bill for any purpose within subsection (1) of this section shall not be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure, or for the Governor’s Assent, or be in any other way assented to, until the Bill has been approved by the electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill through the Legislative Assembly, the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the same or in substitution therefor.
Such day shall be appointed by the Governor in Council.
(4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section.
ATTACHMENT 3 section 6
CONSTITUTION ACT AMENDMENT ACT 1934,
SECTION 3
The Constitution Act Amendment Act 1934—
3 Parliament not to be altered in the direction of re-establishing the Legislative Council or other body except in accordance with this section
(1) The Parliament of Queensland (or, as sometimes called, the Legislature of Queensland), constituted by His Majesty the King and the Legislative Assembly of Queensland in Parliament assembled shall not be altered in the direction of providing for the restoration and/or constitution and/or establishment of another legislative body (whether called the “Legislative Council,” or by any other name or designation, in addition to the Legislative Assembly) except in the manner provided in this section.
(2) A Bill for any purpose within subsection one of this section shall not be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure, or for the Governor’s Assent, or be in any other way assented to, until the Bill has been approved by the electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill through the Legislative Assembly, the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the same or in substitution therefor.
Such day shall be appointed by the Governor in Council.
(4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section.
SCHEDULE 1
OATHS AND AFFIRMATIONS sections 22, 31, 41, 43, 46, 48 and 59 (39 Sections 22 (No member to sit or vote without first taking oath or making affirmation), 31 (Requirements concerning commission and oath or affirmation), 41 (Administration of Government by Acting Governor), 43 (Appointment of Ministers of the State), 46 (Member may act for a Minister), 48 (Executive Council) and 59 (Appointment of judges))
Oath or affirmation of allegiance and of office—member of the Legislative Assembly
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve the people of Queensland and faithfully perform the duties and responsibilities of a member of the Legislative Assembly to the best of my ability and according to law.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Governor and Acting Governor
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve Her (or His) Majesty..(name of Sovereign).. in the office of Governor of Queensland (or, for an Acting Governor—in the
office of Acting Governor of Queensland) in the Commonwealth of Australia, and will duly perform the functions and exercise the powers of the office according to the best of my ability, skill and knowledge; and I will, in all things associated with the office, duly and impartially administer justice in Queensland.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Minister of the State and acting Minister of the State
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve the people of Queensland in the office of (portfolio title) (or, for an acting Minister of the State—acting in the office of (portfolio title)).
So help me God! (or omitted for an affirmation).
Oath or affirmation of office and of secrecy—member of Executive Council
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will, to the best of my judgment and ability, faithfully advise and assist the Governor or other officer performing a function or exercising a power of the Governor as Deputy Governor or Acting Governor, in all matters
brought under my consideration as a member of the Executive Council of Queensland; and I will not disclose the confidential deliberations of the council.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Judge
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and As a judge of the Supreme Court of Queensland (or District Court of Queensland) (and/or as (title of other office, for example, Chief Justice of
Queensland)), I will at all times and in all things do equal justice to all persons and discharge the duties and responsibilities of the office according to law to the best of my knowledge and ability without fear favour or
affection.
So help me God! (or omitted for an affirmation).
This question must be answered by both the courts and the government.
Under the Australian Constitutional structure & the Commonwealth we have a Separation of Powers, where the Judiciary are not to be governed or influenced by the Parliament.
This is evidenced in (reference included in this document) –
Judiciary Act 1903 – sect 86
High Court of Australia Act 1979 – sect 48
Federal Magistrates Act 1999 – sect 81
Legislative Instruments Act 2003 – sect 9
Acts Interpretation Act 1901 – sect 28
Each of these sections gives the authority to make the Rules of Court to –
Justices of the High Court
Federal Magistrates
However, in Queensland, the Supreme Court of Queensland Act 1991 (Page 7) , which was reprinted in 1995, states in sect 118 (1) , the Governor in Council may make rules of court under this act for the Supreme court, District court, Magistrates court, registries and other matters mentioned in Schedule 1.
It further states in sect 134, that the Supreme Court of QLD ACT 1991 prevails in all areas of inconsistency over the 1995 Act.
Now, Schedule 1 has jurisdiction over the civil, criminal and appellate courts, Parties & Proceedings, Defence, Service of Documents, Pleadings, Disclosure, Preservation of Rights & Property, Ending Proceedings Early, Court Supervision, Evidence, Jurisdiction of Judicial Registrars, Trails & Other Hearings, Particular Proceedings, probate, Contempt of Court, Vexatious Proceedings, Trusts, Costs, Appeals etc, Money Orders Enforcement, Foreign Judgment Enforcements, Corporations, Miscellaneous.
This, in essence, states that the Governor in Council may make Rules of Court for all of the above. Consider carefully what is involved in each of these areas.
Not the judges. The Governor in Council.
And of course, the Governor was moved into the role of Parliamentary Secretary 29 January 1999. See Constitution (Parliamentary Secretaries) Act ©The State of QLD 1996. On the same day the QLD Constitution 1867 reprint was proclaimed, thus verifiying the position of Parliamentary Secretary under its Constitution.
Now, note the Supreme Court Act 1991 states the Governor in Council.
QUESTION: So, who are the members of the Council?
We now go to the Queensland Constitution 2001 (Page 13).
Chapters 1 & 2 refer to the Legislative Assembly and the Governor. But in Chapter 3, Part 1, sect 27 we read – “The Governor in Council is the Governor acting with the advice of Executive Council.”
Clearly the Governor and the Executive council are making the rules of court. Which is not and has never been the Governor’s role.
Sect 30 – “The Constitution Act 1867 contains provisions about the office of Governor.
QUESTION: Who are the members of the Executive Council?
At Chapter 3, Part 4, sect 48, those “appointed as members…by the Governor…..”
This Executive council is given separate law makings Powers of the State at Chapter 3, Part 5, Sect 51, where is states, the Executive Government of the State of QLD (the “State) = The State may exercise its powers……
Chapter 3 has created another House of Parliament in QLD. A matter (among others) which clearly required a Referendum of the People. In this Chapter, the Governor is created as a separate entity, capable of approving laws and acts which do not answer to either the people of QLD, or the courts.
In QLD now, the judges do not make the rules of court, the Government of QLD does. This removes the Separation of Powers and Common Law.
In fact, the Legislative Assembly has no more role than to appear to create discussion of proposed laws, acts, etc as developed by the Executive Council and stamped treasonously by the Governor/Parliamentary Secretary.
Although the people may still vote for members of the Legislative Assembly, they are given a furphy in that their vote leads to no control whatsoever of the laws of this state, as the LA is not part of the Governor in Council which decides the Rules of Court.
Also the Governor is not stated as the leader of the Executive Council but acts ‘with their advice” and “in council”.
The Premier of Qld, must always be the leader of the Executive Body. In Chapter 3, Part 5, Sect 55 (1) –
“A minister may delegate a power of the State to an appropriately qualified officer of the State.”
“officer of the state” means –
(a) a chief executive………………….
As the Leader of the Executive is chosen by the Executive, this is in line with Sect 55 (1). If the Governor is not the leader, then this person – the Premier – must be in leadership for both the Executive and the governor.
Hence this leader is in a position of almost dictatorial power in QLD.
In order to see the result of these situations in the Courts, go to the Court of Appeals QLD - http://www.austlii.edu.au/au/cases/qld/QCA/
Cases include
· Glasgow v. Hall [2007] QCA 19 (2 February 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/19.html
· Burns v. State of Queensland & Croton [2007] QCA 240 (27 July 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/240.html
· Watts v. Ellis [2007] QCA 234 (23 July 2007) http://www.austlii.edu.au/au/cases/qld/QCA/2007/234.html
· Dore & Ors v. Penny [2006] QSC 125 (5 May 2006) http://www.austlii.edu.au/au/cases/qld/QCA/2005/150.html
· Wilson v Raddatz [2006] QCA 392 http://archive.sclqld.org.au/qjudgment/2006/QCA06-392.pdf
Reference Notes for the sections listed.
Judiciary Act 1903 http://www.foundingdocs.gov.au/resources/transcripts/cth8_doc_1903.pdf
Rules of Court.
86. The Justices of the High Court or a majority of them may make Rules of Court not inconsistent with this Act for carrying this Act into effect, and in particular for the following matters, that is to say :—
(a) Appointing and regulating the sittings of the High Court and of the Justices;
(b) Regulating procedure pleading and practice in the High Court in civil or criminal matters in the exercise both of its original and of its appellate jurisdiction;
(c) Regulating any matters relating to the duties of the officers of the High Court and of the Marshal and his
Deputies and officers;
(d) Prescribing the forms to be used for the purposes of the proceedings of the High Court;
(e) Prescribing and regulating the fees to be charged by practitioners practising in the High Court for the
work done by them in relation to proceedings in the Court and for the taxation of their bills of costs, either
as between party and party or as between solicitor and client;
(f) Prescribing the fees to be collected by the officers of the High Court and by the Marshal and his officers in respect of proceedings in the Court or of the execution of the process thereof;
(g) Prescribing the extent to which the provisions of this Act shall be applicable to the Courts of Territories of the Commonwealth;
(h) Generally regulating all matters of practice and procedure in the High Court and other federal courts, and so far as is necessary in courts of federal jurisdiction.
High Court of Australia Act 1979 http://www.comlaw.gov.au/ComLaw/Legislation/ActCompilation1.nsf/0/5D4B7E7835DF0683CA256FBF0027DC00?OpenDocument
48 Rules of Court
The power of the Justices or of a majority of them to make Rules of Court under section 86 of the Judiciary Act 1903 extends to making any Rules of Court required or permitted by this Act to be made or necessary or convenient to be made for carrying into effect the provisions of this Act.
Federal Magistrates Act 1999 http://www.fmc.gov.au/law/html/act.html
Part 6 - Practice and procedure
Division 8 - Rules of Court
81 Rules of Court
(1) The Federal Magistrates, or a majority of them, may make Rules of Court:
(a) making provision for or in relation to the practice and procedure to be followed in the Federal Magistrates Court (including the practice and procedure to be followed in registries of the Federal Magistrates Court);
or
(b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Magistrates Court;
or
(c) prescribing matters required or permitted by:
(i) any other provision of this Act;
or
(ii) any other law of the Commonwealth;
to be prescribed by the Rules of Court.
(2) Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.
(3) The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under this Act or another Act:
(a) as if a reference to a legislative instrument were a reference to a rule of court;
and
(b) as if a reference to a rulemaker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates;
and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 20 of this Act.
(4) Despite the fact that section 16 of the Legislative Instruments Act 2003 does not apply to rules of court made by the Court under this Act or another Act, the Department may provide assistance in the drafting of any of those Rules if the Chief Federal Magistrate so desires.
Legislative Instruments Act 2003 http://www.austlii.edu.au/au/legis/cth/consol_act/lia2003292/s4.html#instrument
SECT 9
Rules of court are not legislative instruments
Rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court are not legislative instruments for the purposes of this Act.
Note: Rules of court are treated as if they were legislative instruments by express amendment of the legislation providing for them to be made.
legislative instrument has the meaning given by section 5 and includes instruments that are declared to be legislative instruments under section 6 but does not include:
(a) instruments that are declared not to be legislative instruments under section 7; or
(b) instruments to which section 9 applies.
Acts Interpretation Act 1901 http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s28.html
SECT 28
Rules of Court
(1) In any Act, unless the contrary intention appears, the expression “Rules of Court” when used in relation to any court shall mean rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court.
(2) The power of such authority to make Rules of Court shall, unless the contrary intention appears, include a power to make Rules of Court for the purpose of any Act which directs or authorizes anything to be done by Rules of Court.
Supreme Court of Queensland Act 1991 http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SuprCrtQA91.pdf
118 Rule-making power
(1) The Governor in Council may make rules of court under this Act for—
(a) the practices and procedures of the Supreme Court, the District Court or the Magistrates Courts or their registries or another matter mentioned in schedule 1; (see Schedule 1 (Subject matter for rules))
or
(b) the admission of persons to the legal profession under the Legal Profession Act 2007, including fees relating to admission;
or
(ba) the assessment of costs for the Legal Profession Act 2007, part 3.4, division 7; or
(c) appeals from the Mental Health Court; or
(d) any law giving jurisdiction to the Supreme Court, the District Court or the Magistrates Courts, including a law of the Commonwealth.
134 Act to prevail over Supreme Court Act 1995
(1) If a provision of the Supreme Court Act 1995 is inconsistent with this Act, this Act prevails to the extent of the inconsistency.
(2) In this section—
inconsistency includes—
(a) direct inconsistency; and
(b) covering the field inconsistency.
this Act includes the Uniform Civil Procedure Rules made under this Act.
Schedule 1 Subject matter for rules Section 118
Part 1 General
1 Jurisdiction generally
Jurisdiction of the courts, including civil, criminal and any appellate jurisdiction.
Part 2 Civil proceedings
2 Starting civil proceedings
Starting civil proceedings in the courts, including, for example, the following—
(a) originating process;
(b) where to start proceedings;
(c) for the Supreme Court—cross-vesting of jurisdiction.
3 Parties and proceedings
Parties and proceedings, including, for example, the following—
(a) several causes of action and parties in a civil proceeding, including reconstitution of proceedings and representative parties;
(b) multiple civil proceedings;
(c) interpleader orders;
(d) civil proceedings by or against a business or person under a legal incapacity;
(e) third party procedure.
4 Notices of intention to defend
Notices of intention to defend in civil proceedings.
5 Service of documents
Service of documents for civil proceedings, including, for example, the following—
(a) the various types of service, including personal service and ordinary service;
(b) service outside Australia and service of foreign legal process in Queensland.
6 Pleadings
Pleadings, including, for example, the following—
(a) matters in pleadings and particulars;
(b) progress of pleadings;
(c) particular pleadings, including statements of claim and counterclaims.
7 Disclosure
In civil proceedings—
(a) disclosure by parties, including disclosure and inspection of documents and interrogatories; or
(b) non-party disclosure; or
(c) admissions; or
(d) disclosure of experts’ reports and other material to which legal professional privilege may attach, including by direction or order of the court.
8 Preservation of rights and property
Preservation of rights and property in civil proceedings, including, for example, the following—
(a) inspection, detention and preservation of property;
(b) for the Supreme Court and the District Court—
(i) injunctions, including Mareva injunctions and Anton Piller orders;
or
(ii) receivers;
or
(iii) sales by court order.
9 Ending proceedings early
(1) Ending civil proceedings early, including, for example, the following—
(a) ending proceedings because of default;
(b) summary decisions;
(c) discontinuance and withdrawal;
(d) alternative dispute resolution processes, including, for example, the following—
(i) experience and qualifications for approval as a mediator or case appraiser;
(ii) persons who must pay ADR costs and the way, and time within which, ADR costs are to be paid;
(iii) jurisdiction of a case appraiser at a case appraisal;
(iv) ability of a mediator or case appraiser to seek independent advice or information;
(v) time within which an ADR process should be finished (which may be a time specified by the court);
(vi) conduct of an ADR process;
(vii) confidentiality of a mediated agreement or case appraiser’s decision;
(viii)applying procedures and other matters similar to those applying to arbitrations under the Commercial Arbitration Act 1990;
(ix) imposing penalties against a party who fails to cooperate in an ADR process;
(e) conciliation processes, including, for example, the following—
(i) experience and qualifications for approval, under the Magistrates Courts Act 1921, section 42T, as a conciliator;
(ii) the way a conciliator is to be appointed under the Magistrates Courts Act 1921, section 42F;
(iii) time within which conciliation processes should be finished;
(iv) requirements about recording an agreement under the Magistrates Courts Act 1921, section 42M;
(v) requirements for parties to help conciliators;
(vi) ability of a conciliator to seek independent advice or information;
(vii) appointment of a replacement conciliator;
(viii)abandonment of a conciliation process;
(ix) information to be contained in the register to be kept under the Magistrates Courts Act 1921, section 42X;
(x) form of a conciliation certificate;
(f) offers to settle and payments by defendants;
(g) the referral of cases to arbitration.
(2) In this section—
conciliation certificate means a certificate mentioned in the Magistrates Courts Act 1921, section 42L.
conciliation process see the Magistrates Courts Act 1921, section 42D.
conciliator see the Magistrates Courts Act 1921, section 2.
10 Court supervision
Court supervision of civil proceedings, including, for example, the following—
(a) directions about the conduct of proceedings;
(b) consequences of failing to comply with rules, directions or court orders;
(c) amendments, both with and without leave;
(d) continuation of proceedings after delay.
11 Evidence
(1) The taking of evidence generally, including, for example, the following—
(a) the way evidence may be given;
(b) dispensing with the rules of evidence;
(c) taking evidence out of court;
(d) taking evidence for future claims;
(e) subpoenas;
(g) affidavits and the exchange of correspondence instead of affidavit evidence;
(h) the obtaining of evidence by the court, including, for example, the calling of witnesses.
(2) Expert evidence generally, including, for example, the following—
(a) conferring immunity from action on experts in relation to reports tendered in evidence;
(b) matters relating to court experts;
(c) the appointment by the court of an expert to prepare a report about a dispute before proceedings are started for tendering as evidence in proceedings started later in relation to the dispute;
(d) defining the duty of an expert witness in relation to the court and the parties;
(e) prescribing the basis of and conditions for the admissibility of expert evidence.
12 Jurisdiction of judicial registrars and registrars
Jurisdiction of judicial registrars and registrars.
Note—
judicial registrar means a judicial registrar of the District Court—see schedule 2.
13 Trials and other hearings
Trials and other hearings of civil proceedings, including, for example, the following—
(a) practice lists;
(b) listing applications for hearing and setting trial dates;
(c) the conduct of trials;
(d) decisions without pleadings or without hearings;
(e) separate decisions on questions;
(f) assessors and special referees;
(g) assessment of damages;
(h) simplified procedures for minor debt claims and other claims.
14 Particular proceedings
Particular civil proceedings, including, for example, the following—
(a) the taking of accounts;
(b) proceedings for damages for personal injury or death;
(c) the payment of amounts into court;
(d) for the Supreme Court—
(i) judicial review proceedings; or
(ii) proceedings for the issue of a writ of habeas corpus.
15 Probate
For the Supreme Court, probate, including, for example, the following—
(a) applications for grants of probate or letters of administration and the documents required;
(b) resealing grants;
(c) proceedings under the Public Trustee Act 1978;
(d) caveats objecting to grants, orders to administer or resealing of grants;
(e) contested proceedings.
16 Contempt of court
Contempt of court, including, for the District Court, contempt of the District Court as constituted by a judicial registrar, and proceedings for failure to comply with an order, other than an order for the payment of an amount.
Note—
judicial registrar means a judicial registrar of the District Court—see schedule 2.
16A Vexatious proceedings
Restriction of vexatious proceedings within the meaning of the Vexatious Proceedings Act 2005.
17 Trusts
For the Supreme Court, trusts.
18 Costs
Costs in civil proceedings, including, for example, the following—
(a) security for costs;
(b) entitlement to recover costs of a proceeding;
(c) costs of a party in a proceeding;
(d) assessment of costs, including—
(i) the approval of registrars, and the appointment and removal of other persons, to assess costs under the Uniform Civil Procedure Rules 1999;
or
(ii) powers of costs assessors to assess costs;
or
(iii) procedures;
or
(iv) review of assessments.
19 Appeals, applications and cases stated to Court of Appeal
Appeals, applications and cases stated to the Court of Appeal.
20 Enforcement of money orders
Enforcement of orders, including, for example, the following—
(a) enforcement hearings;
(b) enforcement warrants, including—
(i) enforcement warrants for entry on to and deliveryof possession of land;
or
(ii) enforcement warrants for seizure and sale of property; r
(iii) enforcement warrants for seizure and delivery of specified goods;
or
(iv) enforcement warrants for seizure and detention of property;
or
(v) enforcement warrants for redirection of debts or earnings;
or
(vi) enforcement warrants for payment of the money order debt by instalments; or
(vii) for the Supreme Court—enforcement warrants for charging orders and stop orders;
(c) powers of enforcement officers.
21 Reciprocal enforcement of foreign judgments
The reciprocal enforcement of foreign judgments, including under a Commonwealth law.
22 Corporations
Any law, including a Commonwealth law, under which the Supreme Court exercises jurisdiction in relation to corporations or similar entities.
23 Miscellaneous matters
The following matters—
(a) documents filed in the registries;
(b) filing, receipt, service, issue or transmission electronically of approved forms and other documents and material for use in, or in connection with, proceedings, including, electronic representations or equivalents of seals, stamps and signatures and their validity;
(c) the functions of the registries generally;
(d) the rules applicable to lawyers acting for parties in proceedings in the court;
(e) transitional arrangements.
Part 3 Criminal proceedings
24 Practice and procedure in criminal jurisdiction
Practice and procedure in the courts’ criminal jurisdiction (including any appellate jurisdiction) generally, including, for example, the following—
(a) forms for proceedings;
(b) applications;
(c) lawyers’ and court’s duties;
(d) pre-trial matters, including, for example, subpoenas and pre-trial directions and rulings;
(e) regulating trial proceedings;
(g) evidence;
(h) the custody and inspection of exhibits;
(i) the recording of proceedings and access to the records;
(j) appeals, including, appeals to the Court of Appeal and the District Court;
(k) listing trials, sentences, applications and appeals for hearing, and setting hearing dates;
(l) filing, receipt, service, issue or transmission electronically of forms and other documents and material for use in, or in connection with, proceedings, including, electronic representations or equivalents of seals, stamps and signatures and their validity.
Part 4 Miscellaneous
25 Matter used in proceedings
The disposal or destruction of matter held by the court that was used in a proceeding and is unclaimed.
Constitution of Queensland 2001 http://www.constitution.qld.gov.au/pdf/ConstitutionAct.pdf
CHAPTER 1—PRELIMINARY
1 Short title
This Act may be cited as the Constitution of Queensland 2001.
2 Commencement
This Act commences on 6 June 2002.
3 Object
This Act declares, consolidates and modernises the Constitution of Queensland.
Note –
However, this Act does not consolidate the following constitutional provisions because of the special additional procedures, including approval by the majority of electors at a referendum, that may be required—
Constitution Act 1867, sections 1, 2, 2A, 11A, 11B and 53
Constitution Act Amendment Act 1890, section 2
Constitution Act Amendment Act 1934, sections 3 and 4.
Further, this Act does not consolidate the Constitution Act 1867, sections 30 and 40.
4 References to the Sovereign
A reference in this Act to the Sovereign is a reference to the Queen or King for the time being, and, if necessary, includes the Queen’s or King’s heirs and successors.
5 Note in text is part of this Act
A note in the text of this Act is part of this Act.
CHAPTER 2—PARLIAMENT
PART 1—CONSTITUTION AND POWERS OF PARLIAMENT
6 The Parliament
The Constitution Act 1867, section 2A provides for the Parliament in Queensland.
Note—
The Constitution Act 1867, section 2A is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see Attachment 1 for these provisions)
Note also the Constitution Act Amendment Act 1934, section 3 (Parliament not to be altered in the direction of re-establishing the Legislative Council or other body except in accordance with this section).(see attachment 3 for these provisions)
7 Legislative Assembly
The Constitution Act 1867, section1 provides for a Legislative Assembly in Queensland.
Note—
The Constitution Act 1867, section 1 is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see attachment 1 for a copy of these provisions)
8 Law-making power
The Constitution Act 1867, section 2 provides for law-making power in Queensland.
Notes—
The Constitution Act 1867, section 2 is subject to section 53 (Certain measures to be supported by referendum) of that Act.(see attachment 1 for a copy of these provisions).
See also the Australia Act 1986 (Cwlth), sections 2 (Legislative powers of Parliaments of States), 3 (Termination of restrictions on legislative powers of Parliaments of States) and 6 (Manner and form of making certain State laws).
9 Powers, rights and immunities of Legislative Assembly
(1) The powers, rights and immunities of the Legislative Assembly and its members and committees are—
(a) the powers, rights and immunities defined under an Act;
and
(b) until defined under an Act—the powers, rights and immunities, by custom, statute or otherwise, of the Commons House of Parliament of the United Kingdom and its members and committees at the establishment of the Commonwealth.
Note—
Date of establishment of the Commonwealth—1 January 1901.
(2) In this section— “rights” includes privileges.
10 Members of Legislative Assembly
The Legislative Assembly is to consist of directly elected members who are eligible (see S21) to be elected by the inhabitants of the State who are eligible (see Electoral Act 1992) to elect members.
11 Number of members of Legislative Assembly
The Legislative Assembly is to consist of 89 members.
12 Division of State into electoral districts
The State is to be divided into the same number of electoral districts as there are members of the Legislative Assembly.
Note—
The process for dividing the State into electoral districts is provided for by the Electoral Act 1992.
13 1 member for each electoral district
Each member of the Legislative Assembly is to represent 1 of the electoral districts.
14 Power to alter system of representation
The Parliament under an Act may—
(a) vary the number of members to be elected to the Legislative Assembly;
and
(b) vary the electoral districts of the State that are to be represented in the Legislative Assembly;
and
(c) establish new and other electoral districts;
and
(d) vary and regulate the appointment of returning officers and make any new and other provision that it considers convenient for the issuing and return of writs for the election of members to the Legislative Assembly and the time and place of holding the elections.
PART 2—PROCEDURAL REQUIREMENTS FOR THE LEGISLATIVE ASSEMBLY/\
15 Summoning, proroguing and dissolving the Legislative Assembly
(1) The Governor may summon the Legislative Assembly in the Sovereign’s name by instrument under the Public Seal of the State.
(2) The Governor may prorogue or dissolve the Legislative Assembly by proclamation or otherwise whenever the Governor considers it expedient.
16 Duration of Legislative Assembly
The Constitution Act Amendment Act 1890, section 2 provides for the duration of the Legislative Assembly.
Note—
The Constitution Act Amendment Act 1890, section 2 is subject to the Constitution Act Amendment Act 1934, section 4 (Duration of Legislative Assembly not to be extended except in accordance with this section).(see attachment 2 for a copy of these provisions)
17 Continuation of Legislative Assembly despite end of Sovereign’s reign
If the Sovereign’s reign ends, the Legislative Assembly, as constituted immediately before the end of the reign, continues in existence, subject to dissolution under section 15(2), for as long as it would have continued if
the Sovereign’s reign had not ended.
18 Time and place for sessions of Legislative Assembly
(1) The Governor may set the times and places in Queensland for sessions of the Legislative Assembly that the Governor considers appropriate.
(2) The Governor may change the times and places if the Governor considers change advisable and more consistent with general convenience and the public welfare.
(3) The Governor must give sufficient notice of a change.
19 Minimum sitting requirement for Legislative Assembly
(1) There must be at least 2 sittings of the Legislative Assembly in every calendar year.
(2) Six months must not pass between a sitting of the Legislative Assembly and the next sitting of the Legislative Assembly.
PART 3—APPROPRIATION FOR LEGISLATIVE ASSEMBLY
20 Separate appropriation for Legislative Assembly
(1) Legislation appropriating the consolidated fund for the Legislative Assembly and the parliamentary service, including salaries payable under the Parliament of Queensland Act 2001 and the Parliamentary Service Act 1988, is to be contained in a Bill separate from any other Bill about any appropriation for any other purpose.
(2) This section is to be read with the Financial Administration and Audit Act 1977.
PART 4—MEMBERS
Division 1—Generally
21 Eligibility to be a candidate and to be elected as a member
(1) A person is eligible to be a candidate, and to be elected, as a member of the Legislative Assembly, if the person—
(a) is an adult Australian citizen living in Queensland;
and
(b) has any further qualification required under an Act;
and
(c) is not disqualified under an Act.
Note—
For an example of subsection (1)(b) and (c), see the Parliament of Queensland Act 2001, section 64 (Qualifications to be a candidate and be elected a member).
(2) Subsection (1) is subject to any conditions imposed under an Act.
22 No member to sit or vote without first taking oath or making affirmation
(1) No member may sit or vote in the Legislative Assembly unless the member has taken or made the oath or affirmation of allegiance and of office in schedule 1. (Schedule 1 (Oaths and affirmations))
(2) The oath must be taken or the affirmation must be made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
(3) A member “takes” the member’s seat on taking the oath or making the affirmation.
Division 2—Members who are Ministers or Parliamentary Secretaries
23 Ministers
Chapter 3, part 3 (Chapter 3 (Governor and Executive Government), part 3 (Cabinet and Ministers of the State) contains provisions about the appointment of members of the Legislative Assembly as Ministers or acting Ministers.
24 Appointment of Parliamentary Secretaries
(1) The Governor in Council may appoint members of the Legislative Assembly as Parliamentary Secretaries.
(2) However, a Minister or member of Executive Council may not be appointed as a Parliamentary Secretary.
25 Functions of Parliamentary Secretary
A Parliamentary Secretary has the functions decided by the Premier.
26 Length of Parliamentary Secretary’s appointment
(1) The appointment of a member of the Legislative Assembly as a Parliamentary Secretary ends on the polling day for the next general election after the appointment.
(2) However, the appointment ends before the polling day when any of the following happen—
(a) the member’s seat becomes vacant otherwise than because the Legislative Assembly is dissolved or expires by the passage of time;
(b) the member resigns as Parliamentary Secretary by written notice of resignation given to the Premier;
(c) the member is appointed as a Minister or member of Executive Council or is appointed to act as a Minister under section 46; Section 46 (Member may act for a Minister)
(d) the appointment is ended by the Governor in Council under subsection (3).
(3) The Governor in Council, at any time, may end the appointment for reasons the Governor in Council considers sufficient or for no reason.
(4) In this section—
“general election” means an election for the members of the Legislative Assembly.
CHAPTER 3—GOVERNOR AND EXECUTIVE GOVERNMENT
PART 1—INTERPRETATION
27 Governor in Council
The Governor in Council is the Governor acting with the advice of Executive Council.
PART 2—GOVERNOR
28 Definition for pt 2
In this part—
“Royal Sign Manual” means the signature or royal hand of the Sovereign.
29 Governor
(1) There must be a Governor of Queensland.
(2) The Governor must be appointed by commission under the Royal Sign Manual.
30 Office of Governor
The Constitution Act 1867, sections 11A and 11B contain provisions about the office of Governor.
Note—
The Constitution Act 1867, sections 11A and 11B are subject to section 53 (Certain measures to be supported by referendum) of that Act. (See attachment 1 for a copy of these provisions.)
31 Requirements concerning commission and oath or affirmation
(1) Before undertaking any duties as Governor, a person appointed as Governor must, in the presence of the Chief Justice, or the next most senior judge of the Supreme Court of Queensland who is able to act, (the “judicial officer”) and of at least 2 members of Executive Council—
(a) cause the commission appointing the person as Governor to be read and published at the seat of government in the State;
and
(b) take or make the oath or affirmation of allegiance and of office in schedule 1,( Schedule 1 (Oaths and affirmations) subject to and in accordance with the law and practice of the State.
(2) The judicial officer must administer the oath or affirmation.
32 Termination of appointment as Governor
(1) The appointment of a person as Governor may be terminated only by instrument under the Royal Sign Manual.
(2) The instrument takes effect on its publication in the gazette or at a later time stated in the instrument.
33 General power of Governor
The Governor is authorised and required to do all things that belong to the Governor’s office under any law.
34 Power of Governor—Ministers
Ministers hold office at the pleasure of the Governor who, in the exercise of the Governor’s power to appoint and dismiss the Ministers, is not subject to direction by any person and is not limited as to the Governor’s sources of
advice.
35 Power of Governor—removal or suspension of officer
(1) This section does not limit the power of the Governor under another provision of this Act or another Act.
(2) To the extent that it is within the Governor’s power and if the Governor considers there is sufficient reason, the Governor may remove or suspend a person holding an office or place under an appointment made in the name or under the authority of the Sovereign.
36 Power of Governor—relief for offender
(1) This section does not limit the operation of another Act.
(2) In relation to an offence against a law of the State, the Governor may grant the offender, in the name and on behalf of the Sovereign—
(a) a pardon, a commutation of sentence or a reprieve of execution of sentence for a period the Governor considers appropriate;
or
(b) a remission of a fine, penalty, forfeiture or other consequence of conviction of the offender.
(3) The grant may be unconditional or subject to lawful conditions.
37 Power of Governor—public seal
The Governor may keep and use the Public Seal of the State for sealing all instruments made or passed in the Sovereign’s name.
38 Continued use of seal despite end of Sovereign’s reign
(1) This section applies if the Sovereign’s reign ends and, immediately before the end of the reign, a seal for Queensland issued by the Sovereign is in existence.
(2) The seal, until a new seal is issued by the next Sovereign, may continue to be used as if the Sovereign’s reign had not ended.
39 Statutory powers when Sovereign personally in State
(1) When the Sovereign is personally present in the State, any power under an Act exercisable by the Governor may be exercised by the Sovereign.
(2) The Governor has the same powers in relation to an act done, or an instrument made, by the Sovereign under this section as the Governor has in relation to an act done, or an instrument made, by the Governor himself or herself.
(3) This section does not affect or prevent the exercise of any power under an Act by the Governor.
(4) In this section, references to the Governor or to the Sovereign include references to the Governor, or to the Sovereign, acting with the advice of Executive Council.
40 Delegation by Governor to Deputy Governor
(1) The Governor may delegate all or any of the Governor’s powers to the person mentioned in subsection (2) during and only during any or all periods—
(a) the Governor is temporarily absent for a short period from the seat of government, except when administering the Government of the Commonwealth;
or
(b) the Governor is ill and there are reasonable grounds for believing the illness will be of short duration.
(2) The person to whom the Governor’s powers may be delegated is—
(a) the Lieutenant-Governor;
or
(b) if there is no Lieutenant-Governor in the State and able to act—the Chief Justice;
or
(c) if there is no Chief Justice in the State and able to act—the next most senior judge of the Supreme Court of Queensland who is in the State and able to act.
(3) The delegation must be by instrument under the Public Seal of the State and specify the powers given to the delegate.
(4) A person exercises the Governor’s powers under a delegation as Deputy Governor.
41 Administration of Government by Acting Governor
(1) The person mentioned in subsection (3) must administer the Government of the State during any period—
(a) the office of Governor is vacant;
or
(b) the Governor assumes the administration of the Government of the Commonwealth;
or
(c) the Governor is absent from the State and the Governor’s powers are not being exercised by a Deputy Governor under section 40;
or
(d) the Governor is incapable of performing the duties of office and the Governor’s powers are not being exercised by a Deputy Governor under section 40.
(2) The Governor is taken not to be absent from the State for subsection (1)(c) if the Governor is beyond the boundaries of the State in the course of travel from 1 part of the State to another part of the State.
(3) The person who must administer the Government of the State is—
(a) the Lieutenant-Governor;
or
(b) if there is no Lieutenant-Governor in the State and able to act—the Chief Justice;
or
(c) if there is no Chief Justice in the State and able to act—the next most senior judge of the Supreme Court of Queensland who is in the State and able to act.
(4) A person administering the Government of the State under this section acts as Governor and performs the Governor’s functions and exercises the Governor’s powers as Acting Governor.
(5) Before assuming the administration of the Government of the State, the person must have previously taken or made, or must take or make as soon as is reasonably practicable after the occasion arises for the person to administer the State, the oath or affirmation of allegiance and of office in schedule 1. (Schedule 1 (Oaths and affirmations))
(6) The oath must be taken or the affirmation made in the presence of—
(a) the Chief Justice or the next most senior judge of the Supreme Court of Queensland who is able to act (the “judicial officer”);
and
(b) at least 2 members of Executive Council.
(7) The judicial officer must administer the oath or affirmation.
(8) The person must not continue to administer the Government of the State after the Governor or some other person holding an office prior in title to administer the Government of the State under subsections (1) and (3) has, by proclamation, given notice that the Governor or other person has assumed or resumed, or is about to assume or resume, the administration of the Government of the State.
PART 3—CABINET AND MINISTERS OF THE STATE
42 Cabinet
(1) There must be a Cabinet consisting of the Premier and a number of other Ministers appointed under section 43.
(2) The Cabinet is collectively responsible to the Parliament.
43 Appointment of Ministers of the State
(1) The Governor, by proclamation, may declare the offices to which persons may be appointed as Ministers of the State.
(2) The Governor, by commission, may appoint a person as a Minister of the State.
(3) To remove any doubt, it is declared that the Attorney-General is a Minister.
(4) The maximum number of Ministers at any time is 19.
(5) A Minister must, before entering on the duties of the Minister’s office, take or make the oath or affirmation of allegiance and of office in schedule 1.( Schedule 1 (Oaths and affirmations))
(6) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
44 Administrative arrangements
The Governor in Council, by order published in the gazette, may make administrative arrangements doing either or both of the following—
(a) distributing the public business, or any of that business, among the Ministers;
(b) declaring either or both of the following—
(i) the administrative units, or any of the administrative units, or the parts of the administrative units administered by each Minister respectively, or any Minister;
(ii) the Acts, or any of the Acts, or the parts of the Acts administered by each Minister respectively, or by any Minister.
45 Minister may act for another Minister
(1) The Governor or Premier, in writing, may appoint a Minister to act as another Minister.
(2) The Minister may be appointed to perform all or any of the other Minister’s functions and exercise all or any of the other Minister’s powers.
(3) However, an appointment by the Premier may not be for a period of more than 14 days.
46 Member may act for a Minister
(1) Without limiting section 45, the Governor, by proclamation, may appoint a member of the Legislative Assembly to act as a Minister for any or all periods the Minister is—
(a) absent from the State in the course of the duties of the office;
or
(b) absent on leave given under section 47.
(2) The member may be appointed to perform all or any of a Minister’s functions and exercise all or any of a Minister’s powers.
(3) The member, before entering on the duties of the office, must take or make the oath or affirmation of allegiance and of office in schedule 1.( Schedule 1 (Oaths and affirmations))
(4) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
(5) A person who is already a Minister may not be appointed under subsection (1).
(6) An appointment under subsection (1) has effect despite section 43(4).
47 Sick leave
The Governor, by proclamation, may give a Minister who is ill leave of absence with pay for a period of not more than 6 months.
PART 4—EXECUTIVE COUNCIL
48 Executive Council
(1) There must be an Executive Council for the State.
(2) Executive Council consists of the persons appointed as members of the Executive Council by the Governor by instrument under the Public Seal of the State.
(3) A member of Executive Council must, before entering on the duties of the member’s office, take or make the oath or affirmation of office and of secrecy in schedule 1. (Schedule 1 (Oaths and affirmations))
(4) The oath must be taken or the affirmation made in the presence of the Governor or a person authorised by the Governor to administer the oath or affirmation.
49 Length of appointment as member of Executive Council
The appointment of a person as a member of Executive Council ends only on the happening of either of the following—
(a) the person’s resignation as a member of Executive Council;
(b) the person’s removal as a member of Executive Council by the Governor.
50 Meetings of Executive Council
(1) The Governor must preside over a meeting of Executive Council.
(2) However, if, for good reason, the Governor can not preside, a meeting of Executive Council must be presided over by—
(a) if the Governor has appointed a member of Executive Council to preside—the member;
or
(b) if the Governor has not appointed a member to preside—the member who is taken to be the most senior member present.
(3) Executive Council must not deal with any business at a meeting unless—
(a) it has been summoned to meet by the Governor’s authority;
and
(b) at least 2 members, other than any presiding member, are present for the entire meeting.
PART 5—POWERS OF THE STATE
Division 1—General
51 Powers of the State
(1) The Executive Government of the State of Queensland (the “State”) has all the powers, and the legal capacity, of an individual.
(2) The State may exercise its powers—
(a) inside and outside Queensland;
and
(b) inside and outside Australia.
(3) This part does not limit the State’s powers.
Example—
This part does not affect any power a Minister has apart from this part to bind the State by contract.
Division 2—Commercial activities
52 Definitions for div 2
In this division—
“commercial activities” includes—
(a) commercial activities that are not within the ordinary functions of the State;
and
(b) commercial activities of a competitive nature;
and
(c) activities declared by an Act to be commercial activities; but does not include activities declared by an Act not to be commercial activities.
“State” includes a public sector unit.
53 Commercial activities by State
(1) The State may carry out commercial activities.
(2) This section is sufficient statutory authority for the State to carry out a commercial activity.
(3) Commercial activities may be carried out—
(a) without further statutory authority;
and
(b) without prior appropriation from the consolidated fund for the purpose.
(4) Commercial activities may be carried out—
(a) inside and outside Queensland;
and
(b) inside and outside Australia.
54 Commercial activities by Minister
A Minister may carry out commercial activities for the State.
55 Delegation by Minister
(1) A Minister may delegate a power of the State to an appropriately qualified officer of the State.
(2) An officer of the State may subdelegate the delegated power to another appropriately qualified officer of the State.
(3) In this section—
“appropriately qualified”, in relation to a delegated power, includes having the qualifications, experience or standing appropriate to exercise the power.
Example of standing—
A person’s level of employment in the entity in which the person is employed.
“officer of the State” means—
(a) a chief executive, or employee, of a public sector unit;
or
(b) an officer of the public service.
ATTACHMENT 1 sections 6, 7, 8 and 30
CONSTITUTION ACT 1867, SECTIONS 1, 2, 2A, 11A, 11B AND 53
The Constitution Act 1867—
1 Legislative Assembly
There shall be within the said Colony of Queensland a Legislative Assembly.
2 Legislative Assembly constituted
Within the said Colony of Queensland Her Majesty shall have power by and with the advice and consent of the said Assembly to make laws for the peace welfare and good government of the colony in all cases whatsoever.
2A The Parliament
(1) The Parliament of Queensland consists of the Queen and the Legislative Assembly referred to in sections 1 and 2.
(2) Every Bill, after its passage through the Legislative Assembly, shall be presented to the Governor for assent by or in the name of the Queen and shall be of no effect unless it has been duly assented to by or in the name of the Queen.
11A Office of Governor
(1) The Queen’s representative in Queensland is the Governor who shall hold office during Her Majesty’s pleasure.
(2) Abolition of or alteration in the office of Governor shall not be effected by an Act of the Parliament except in accordance with section 53.
(3) In this Act and in every other Act a reference to the Governor shall be taken—
(a) to be a reference to the person appointed for the time being by the Queen by Commission under Her Majesty’s Royal Sign Manual to the office of Governor of the State of Queensland; and
(b) to include any other person appointed by dormant or other Commission under the Royal Sign Manual to administer the Government of the State of Queensland.
11B Definition of Royal Sign Manual
In section 11A the expression “Royal Sign Manual” means the signature or royal hand of the Sovereign.
53 Certain measures to be supported by referendum
(1) A Bill that expressly or impliedly provides for the abolition of or alteration in the office of Governor or that expressly or impliedly in any way affects any of the following sections of this Act namely—
sections 1, 2, 2A, 11A, 11B; and this section 53 shall not be presented for assent by or in the name of the Queen unless it has first been approved by the electors in accordance with this section and a Bill so assented to consequent upon its presentation in contravention of this subsection shall be of no effect as an Act.
(2) On a day not sooner than two months after the passage through the Legislative Assembly of a Bill of a kind referred to in subsection (1) the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of the Elections Act 1915–1973 and of any Act amending the same or of any Act in substitution therefor.
Such day shall be appointed by the Governor in Council by Order in Council.
(3) When the Bill is submitted to the electors the vote shall be taken in such manner as the Parliament of Queensland prescribes.
(4) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for reservation thereof for the signification of the Queen’s pleasure.
(5) Any person entitled to vote at a general election of members of the Legislative Assembly is entitled to bring proceedings in the Supreme Court for a declaration, injunction or other remedy to enforce the provisions of this section either before or after a Bill of a kind referred to in subsection (1) is presented for assent by or in the name of the Queen.
Act 24 Geo. 5 No. 35 preserved
(6) The provisions of this section shall in no way affect the operation of The Constitution Act Amendment Act of 1934.
ATTACHMENT 2 section 16
CONSTITUTION ACT AMENDMENT ACT 1890,
SECTION 2
The Constitution Act Amendment Act 1890—
2 Duration of Legislative Assembly to be 3 years only
Every Legislative Assembly hereafter to be summoned and chosen shall continue for 3 years from the day appointed for the return of the writs for choosing the same, and no longer; subject nevertheless to be sooner
dissolved by the Governor.
CONSTITUTION ACT AMENDMENT ACT 1934,
SECTION 4
The Constitution Act Amendment Act 1934—
4 Duration of Legislative Assembly not to be extended except in accordance with this section
(1) The provisions of section two of “The Constitution Act Amendment Act of 1890” (referred to in the preamble to this Act) shall not be amended in the direction of extending the period of three years, which, as provided by the said section two, is the period for which any Legislative Assembly, now or hereafter summoned and chosen, shall continue from the day appointed for the return of the writs for choosing the same and no longer (subject, nevertheless, to be sooner dissolved by the Governor), nor shall any other Act or law relating to the Constitution be passed extending such period of three years as aforesaid, except in the manner provided by this section.
(2) A Bill for any purpose within subsection (1) of this section shall not be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure, or for the Governor’s Assent, or be in any other way assented to, until the Bill has been approved by the electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill through the Legislative Assembly, the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the same or in substitution therefor.
Such day shall be appointed by the Governor in Council.
(4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section.
ATTACHMENT 3 section 6
CONSTITUTION ACT AMENDMENT ACT 1934,
SECTION 3
The Constitution Act Amendment Act 1934—
3 Parliament not to be altered in the direction of re-establishing the Legislative Council or other body except in accordance with this section
(1) The Parliament of Queensland (or, as sometimes called, the Legislature of Queensland), constituted by His Majesty the King and the Legislative Assembly of Queensland in Parliament assembled shall not be altered in the direction of providing for the restoration and/or constitution and/or establishment of another legislative body (whether called the “Legislative Council,” or by any other name or designation, in addition to the Legislative Assembly) except in the manner provided in this section.
(2) A Bill for any purpose within subsection one of this section shall not be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure, or for the Governor’s Assent, or be in any other way assented to, until the Bill has been approved by the electors in accordance with this section.
(3) On a day not sooner than two months after the passage of the Bill through the Legislative Assembly, the question for the approval or otherwise of the Bill shall be submitted to the electors qualified to vote for the election of members of the Legislative Assembly according to the provisions of “The Elections Acts, 1915 to 1932,” or any Act amending the same or in substitution therefor.
Such day shall be appointed by the Governor in Council.
(4) When the Bill is submitted to the electors the vote shall be taken in such manner as the Legislature prescribes.
(5) If a majority of the electors voting approve the Bill, it shall be presented to the Governor for the reservation thereof for the signification of His Majesty’s pleasure.
(6) The provisions of this section shall extend to any Bill for the repeal or amendment of this section.
SCHEDULE 1
OATHS AND AFFIRMATIONS sections 22, 31, 41, 43, 46, 48 and 59 (39 Sections 22 (No member to sit or vote without first taking oath or making affirmation), 31 (Requirements concerning commission and oath or affirmation), 41 (Administration of Government by Acting Governor), 43 (Appointment of Ministers of the State), 46 (Member may act for a Minister), 48 (Executive Council) and 59 (Appointment of judges))
Oath or affirmation of allegiance and of office—member of the Legislative Assembly
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve the people of Queensland and faithfully perform the duties and responsibilities of a member of the Legislative Assembly to the best of my ability and according to law.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Governor and Acting Governor
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve Her (or His) Majesty..(name of Sovereign).. in the office of Governor of Queensland (or, for an Acting Governor—in the
office of Acting Governor of Queensland) in the Commonwealth of Australia, and will duly perform the functions and exercise the powers of the office according to the best of my ability, skill and knowledge; and I will, in all things associated with the office, duly and impartially administer justice in Queensland.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Minister of the State and acting Minister of the State
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and I will well and truly serve the people of Queensland in the office of (portfolio title) (or, for an acting Minister of the State—acting in the office of (portfolio title)).
So help me God! (or omitted for an affirmation).
Oath or affirmation of office and of secrecy—member of Executive Council
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will, to the best of my judgment and ability, faithfully advise and assist the Governor or other officer performing a function or exercising a power of the Governor as Deputy Governor or Acting Governor, in all matters
brought under my consideration as a member of the Executive Council of Queensland; and I will not disclose the confidential deliberations of the council.
So help me God! (or omitted for an affirmation).
Oath or affirmation of allegiance and of office—Judge
I, ..(name).., do sincerely promise and swear (or, for an affirmation—do sincerely promise and affirm) that
I will be faithful and bear true Allegiance to Her (or His) Majesty..(name of Sovereign).. as lawful Sovereign of Australia and to Her (or His) heirs and successors, according to law; and As a judge of the Supreme Court of Queensland (or District Court of Queensland) (and/or as (title of other office, for example, Chief Justice of
Queensland)), I will at all times and in all things do equal justice to all persons and discharge the duties and responsibilities of the office according to law to the best of my knowledge and ability without fear favour or
affection.
So help me God! (or omitted for an affirmation).
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