The time of Federation
We accept that the people of this continent known as Australia recognize that the aforementioned continent are of Aboriginal or Torres Strait Islander decent; traditional inhabitors and that the Aboriginal or Torres Strait Islander people are the Indigenous people of this continent. Like it or not, it was Great Britton (GB), that settled this country, bringing with them their central form of Governance that had operated for centuries.
In the mid to late 1800s, the Colonies were not working together; instead they were constantly trying to outdo one another to the people’s disadvantage. They were also consistently making laws that were repulsive to the people and offensive to the Laws of England. This misbehaviour still continues today.
The rampant Governments of the Colonies were misbehaving so badly that the UK Parliament were forced to make a law, the Colonial Laws Validity Act 1865(Imp) that stopped such Governments from making laws that were repugnant to the Laws of England. The wise men and women of Australia (The humanitarians) were not particularly happy with the way the Colonies were behaving to the extent, that in their eyes Australia needed a local umbrella body (the Commonwealth Government) that had the ability to restrain the Colonies.
At the time just before Federation, Australia consisted of six Colonies. To turn six Colonies into the Commonwealth of Australia required an Act from the UK Parliament. The Act that the UK Parliament used to Federate Australia was called; “An Act to constitute the Commonwealth of Australia 9th July 1900”. That Act is a Law of the UK Parliament and they can repeal, amend or do nothing with it, and the latter is what has happened.
There is no provision to change the Constitution Act other than the UK Parliament and it’s extremely unlikely that they would do that without a referendum of the people in this country. The Constitution Act is made up of a Preamble and 9 Covering Clauses or Sections and no more. The Constitution Act is an enabling act, in other words an Act that allowed Australia to Federate.
We must understand the difference between the Constitution Act and the Constitution. We also must understand that the Constitution is part of the Constitution Act. (Covering Clause 9)
The Constitution Act.
Below we have included part of the preamble, with some explanation of the Constitution Act.
An Act to constitute the Commonwealth of Australia;
and is referred to as the Constitution Act.
Preamble. (Relevant part only).
“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth, under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.”
“Whereas the people…..; the words “Whereas the people” establish the fact that it was the people that Federated Australia and not any form of Government. “Whereas the people” is neither discriminatory nor racist. Those three words also establish the fact that the people are sovereign over and above any Parliament in Australia. The Annotated Constitution written by Quick and Garran make the following comments; “This opinion approaches near the truth, is the supreme absolute and uncontrollable authority remains with the people. The opening words of the preamble also proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern”.
………New South Wales, Victoria, South Australia, Queensland, and Tasmania; those five Colonies now States, decided to unite as the Commonwealth of Australia and although Western Australia was not part of the Commonwealth at the time of the creation of the Constitution Act. They did however decide to become part of the Commonwealth about one month later. Now that all six Colonies have become six States they united to form the Commonwealth of Australia. New Zealand was invited to be part of the Commonwealth of Australia at that time but they declined the offer.
……have agreed to unite in one indissoluble Federal Commonwealth; simply means that the six Colonies that became States, then went on to be part of the Federal Commonwealth that could not be split up. There is no provision in either the Constitution Act or the Constitution for any State to split from the Commonwealth.
……under the Crown of the United Kingdom; The words “under the Crown of the United Kingdom” have very significant meaning. The Annotated Constitution written by Quick and Garran make the following comments; “It is a concrete and unequivocal acknowledgment of a principle which pervades the whole scheme of Government; harmony with the British Constitution and loyalty to the Queen of the United Kingdom with its multitudinous peoples and its complex divisions of political power”.
……United Kingdom of Great Britain and Ireland; The words “United Kingdom of Great Britain and Ireland” simply mean that three Countries formed together. Prior to the Act of Union 1707, United Kingdom consisted of three separate Countries. Those Countries were England, Scotland and Ireland (Wales is part of England). That on 1st May, 1707, the nations of England and Scotland were united into one kingdom by the name of Great Britain and that there should be one Parliament for the whole kingdom. In 1801, in another Act of Union, Great Britain and Ireland formed together to become the United Kingdom.
…..and under the Constitution hereby established; The words, “Under the Constitution,” The Annotated Constitution written by Quick and Garran make the following comments; “The Commonwealth is a political community, carved out of the British Empire and endowed through its Constitution with a defined quota of self-governing powers. Those powers are delegated by and derived from the British Parliament, and they are to be held, enjoyed, and exercised by the people of the Commonwealth in the manner prescribed by the grant, subject;
- to the supreme British Sovereignty (under the Crown), and
- to the Constitution of the Commonwealth. The Commonwealth is consequently under a double subjection. It is subject in the first place to the British Parliament, which, as the ultimate sovereign authority of the Empire, has the legal power to legislate for the Commonwealth as a part of the Empire, and even to amend or repeal the Constitution of the Commonwealth. The grant of a Constitution to any dependency of the Empire is, however, a practical guarantee that no Imperial legislation conflicting with such grant will be passed except at the express request and with the concurrence of the dependency”
Below we have included part of Covering Clause 5 again with some explanation of the Constitution Act.
Covering Clauses 5. Operation of the Constitution and laws. (Relevant part only).
“This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding (despite) anything in the laws of any State.”
It is this Covering Clause that enables any person to bring the Constitution Act, which includes the Constitution into any court. It would help to support your argument using Covering Clause 5 with some case law.
The Annotated Constitution written by Quick and Garran make the following comments, “No difficulty is suggested by the words, “and all laws made by the Parliament of the Commonwealth under the Constitution.” The words “under the Constitution” are words of limitation and qualification. Not all enactments purporting to be laws made by the Parliament are binding; but laws made under, in pursuance of, and within the authority conferred by the Constitution, and those only, are binding on the courts, judges, and people. A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection. The Act itself is binding without limitation or qualification because it is passed by the sovereign Parliament (UK Parliament), but the laws passed by the Parliament of the Commonwealth, a subordinate Parliament, must be within the limits of the delegation of powers or they will be null and void. What is not so granted to the Parliament of the Commonwealth is denied to it. What is not so granted is either reserved to the States, as expressed in their respective Constitutions, or remains vested but dormant in the people of the Commonwealth”
To understand anything about a Constitution. We must first ask ourselves two questions;
- What is a Constitution?
- Why do we have such a thing?
A Constitution is a document that is full of laws that control the governance of this country.
And what we mean by governance is that there are three distinct and totally separate organs of government in this country, and they are;
- The Parliament, which consists of the upper and lower houses (someone should tell Queensland about that, and is a very good example of why we should ask question 2 above far more frequently) and it is the Parliament that make, repeal and amend laws by first creating bills, and
- The Executive, which is headed up by the Governor General and it is one of their responsibilities to give or not to give Royal assent to bills created by Parliament so that they can become laws. The Police are also an integral part of the Executive, and
- The Judicature, which is headed up by the Chief Justice of the High Court, it is their responsibility to interpret the law and administer justice. The High Court is also an integral part of the Judicature, their primary role is to interpret and uphold the Constitution of the Commonwealth and that of the States. They are not there to defend any form of Government, whether State or Federal, a characteristic that is becoming far too frequent.
Why do we require a Constitution?
As described early in this document the wise men and women of Australia (The humanitarians) were not particularly happy with the way the Colonies were misbehaving. To the extent, that in the eyes of the wise men and women a local umbrella body was needed (the Commonwealth Government) that had the ability to restrain the Colonies. It was also realised that the people required a document that would protect the people from that umbrella body. The Constitution was to be that document.
How did the people come by the Constitution?
The Constitution took about thirteen years from conception to completion. In 1888 the wise men of Australia (largely lawyers) were called the framers of the Constitution and they conducted constitutional conventional debates all around the country. The constitutional conventional debates started in 1888, and went on for ten years. Then in 1898, and only after the framers were satisfied they had a document that they could put to the people in a referendum (Landowners only), a document to seek their approval, at that point the document would become a Constitution.
That 1898 referendum was unsuccessful, the framers had to go back to the drawing board, talk to the people and readjust the document to better reflect their will, and have another referendum (again landowners only), which they did in 1899. This referendum was successful and now the people had a Constitution, which came into effect on the 1st January 1901.
After federation, the people were excited about the formation of their new and independent country, all looked well. But it did not last very long. Soon after Federation the rot started to set in, the extreme right wing (fascist) governments started to exert their marauding tactics upon the people. Such behaviour has grown considerably worse since Federation and it’s not going to get any better until the people wake up and do something about it.
The appalling behaviour by the three organs of government (parliament, executive and the judiciary) has been going on in this country for many decades, and is only able to take place because not enough people are reading and understanding the Constitution, nor asking the two questions mentioned above. We must also lobby our politicians and to let them know just how angry you are. It can all be summed up quite easily, the framers created the Constitution, the people approved the Constitution and such Constitution is in place to protect the people from the marauding governance.
For that reason, we all must read and understand the Constitution, if not enough of us do that, then the age old saying applies.
“If you keep doing what you have always done (nothing), why would you be surprised if you keep getting what you what you always got?”