The Commonwealth of Australia Constitution Act 1900 (UK)
Consists of 8 Chapters and the Schedule.
I. The Parliament
consisting of the Queen, a Senate & a House of Representatives
Governor General appointed by the Queen as her representative
Before taking their seat, they must all swear and Oath or Affirmation of Allegiance.
II. The Executive Government
Executive power is vested in the Queen and can be exercised by the Governor General
The Governor General chooses the members of the Federal Executive Council, who advise him/her.
All references to the Governor General in Council refer to the Governor General acting on the advice of the Federal Executive Council.
III. The Judicature
Judicial power of the Commonwealth is vested in the Federal Supreme Court, called the High Court of AustraliaJustices are appointed by the Governor General in
Council.
IV. Finance and Trade
V. The States
VI. New States
VII. Miscellaneous
VIII. Alteration of the Constitution
The proposed law for the alteration must be passed by an absolute majority of each House of the Parliament and not less than two or more than six months must be submitted to a referendum of the voters in each State and Territory .
If, the referendum is approved by a majority of the States and a majority of the voters, the Governor-General may approve the proposed law.
The Schedule
The Oath & Affirmation of the new parliamentarian.
Protection of Rights
There is no Bill of Rights in the Australian Constitution, because the majority of the people felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Separation of Powers and the 2 houses of Parliament.
And as the Act itself is British law, our access was therefore provided to the Magna Carta, Habeus Corpus, Bill of Rights 1649 and etc.
However the Constitution did include the following rights –
* Right to Trial by Jury in s80 for indictable offences against Commonwealth Law.
* Right to Just Compensation in s51 (xxxi) for assets taken by the Commonwealth.
* Right to Freedom of religion in s116, wherein the Commonwealth can not make laws to do with religion.
* Right to Freedom from Discrimination against residents of another state in s117.
The High Court have also established an implied Right to Freedom of Political Communication and a limited Right to Vote in s7 & s24.
Separation of Powers
Refers to the separation of the Executive (the Ministry), the Legislature (the Parliament) and the Judiciary (the Courts), with none of the three branches of government able to exercise total power.
Legislative power means the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government.
Judicial power gives the High Court power to decide whether laws are legal according to the Constitution.
The essence of the doctrine of separation of powers is thus based on the idea of checks and balances.
Prime Ministers, Premiers & Political Parties
The Constitution does not mention any of these entities in any manner.
The intent of the Constitution was that each person entering the House of Representatives & the Senate would be entirely independent, answerable only to the electors.
Referendums & Plebiscites
At all times, the only manner in which the Constitution could be altered were by binding polls called referendums.
To pass a referendum the final vote had to consist of a majority of states and a majority of the voters agreement.A Yes vote in a referendum would change that section of the Constitution. This would then be presented to the Governor - General for Royal Assent. This then becomes a binding and entrenched alteration to the Constitution.
A No vote was as lawful, in that it meant that there could be no change to the relevant section.
A Plebiscite is an optional voting structure to do with decisions that do not alter the Constitution.
Because the general feeling toward the Constitution is that it is fine the way it is, only 5 Federal referendums out of 21 have received a Yes vote.
* In 1916 & 1917, the people voted No to allow govt to conscript Australians for war.
* 1n 1944, the people voted No when govt wanted to extend its wartime powers into peace times.
* In 1951 the people voted No to banning communism – because it infringed on Freedom of Choice.
* In 1967, 89% of the People voted Yes to include Aboriginal people in the Constitution.
* In 1988, the Federal govt tried to introduce a Bill of Rights which, by stealth, gave govt greater powers. 70% of the people voted No, preferring less govt control.
* In 1999, over 50% of the people voted No against a Republic.
* The people have voted No to allowing govt to further extend their powers into trade, finance, corporations, industrial matters, disputes, aviation, marketing, democratic rights, pricing, incomes and more.
* Important referendums in which the people voted No twice, were in 1974 & 1988, where the People refused to allow Local Councils to be recognized in the Constitution.
Chapter III Court
Under the Constitutional Judicial structure, a constitutional court of law is known as a Chapter III Court.
The judicial power of the Commonwealth can only be exercised by a Chapter III court.
No other body, such as a panel, tribunal, commission, etc can render and enforce a judgment.
This has been upheld by the High Court in
* NSW v Commonwealth (1915) the Wheat Case
* Harry Brandy v Human Rights & Equal Opportunities Commission 1995
* Lane v Morrison 2009
Showing posts with label executive government. Show all posts
Showing posts with label executive government. Show all posts
Wednesday, January 6, 2010
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.
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