Is the Local Government Act 1989 (Vic) Invalid?    April 2015

Despite the argument as to the validity or invalidity of the Victorian
Constitution Act 1975, the Local Government Act 1989 (Vic) appears to be ultra vires.

Some facts.

  1. Every law made anywhere in Australia is subject to the Commonwealth Constitution which is the most superior law in every part of Australia.
  2. Every law made in Victoria is subject to the Victorian Constitution which is the most superior law in Victoria.
  3. Every Parliament requires authority from somewhere to make laws.
  4. The Victorian Parliament receives its authority to make laws, firstly, from section 108 of the Commonwealth Constitution and then section 16 of the Victorian Constitution, and in that order.
  5. Municipal institutions and local government are part of the Commonwealth Constitution, section 107 under the powers reserved to the States, just like Education, Health, Forestry and many others.
  6. In Victoria, Local Government relies on the Local Government Act 1989.
  7. Also in Victoria the Local Government Act 1989 relies on section 74A of the Victorian Constitution.
  8. Section 74A created a stand-alone system of Government but still under the control of the Victorian State Government via the Local Government Act 1989.
  9. Section 74A, which creates a “distinct and essential tier of government” was inserted into the Victorian Constitution in 1979.
  10. Section 74A of the Victorian Constitution is inconsistent with section 107 of the Commonwealth Constitution.
  11. No Law, Statute, Regulation or any other instrument of Law can be inconsistent with the Commonwealth Constitution.
  12. The Commonwealth Constitution is a Law of the Commonwealth.
  13. The Victorian Constitution is a Law of Victoria.

Section 74A was inserted into the Victorian Constitution Act 1975 by means of the Local Government Amendment Act of 1979.

In 1989, Victorian Parliament created the Local Government Act and its head of power is Section 74A of Victorian Constitution Act 1975.

 Quote:                                                                                                                   

Section 74A Local government;

Local government is a distinct and essential tier of government having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district”.

Unquote.

As described in the book named “Annotated Constitution” by Quick and Garran. Briefly, the word annotated means – explained in detail, interpreted, expanded on and can be used as evidence in any court”.
The Annotated Constitution is further explained on page 4 of this document.

The Annotated Constitution of the Australian Commonwealth.
Sir John Quick LL.D. and Sir Robert Randolph Garran, M.A.

Quote:

“Section 107: RESIDUARY LEGISLATIVE POWERS.
The residuary authority left to the Parliament of each State, after the exclusive and concurrent grants to the Federal Parliament, embraces a large mass of constitutional, territorial, municipal, and social powers, including control over:

Agriculture and the cultivation of the soil:

Banking — State banking within the limits of the State:

Borrowing money on the sole credit of the State:

Bounties and aids on mining for gold, silver, or metals:

Charities—establishment and management of asylums:

Constitution of State: amendment, maintenance and execution of

Corporations—other than foreign corporations and trading or financial corporations:

Courts—civil and criminal, maintenance and organization for the execution of the laws of a State:

Departments of State Governments — regulation of 

Education

Factories

Fisheries within the State:

Forests

Friendly Societies

Game

Health, Inspection of goods imported or proposed to be exported in order to detect fraud or prevent the spread of disease:

Insurance — State Insurance within the limits of the State:

Intoxicants—the regulation and prohibition of the manufacture within the State of fermented, distilled, or intoxicating liquids:

Justice—Courts:

Land—management and sale of public lands within the State:

Licenses—the regulation of the issue of licenses to conduct trade and industrial operations, within the State, such as liquor licenses and auctioneers’ licenses.

Manufactures—see factories:

Mines and Mining:

Municipal institutions and local government: 

Officers—appointment and payment of public officers of the State:

Police — regulations, social and sanitary:

Prisons—State prisons and reformatories:

Railways—control and construction of railways within the State, subject to constitutional limitations (see Restricted Powers):

Rivers—subject to constitutional limitations (see Restricted Powers): Shops—subject to constitutional limitations (see Restricted Powers):

Taxation on order to the raising of revenue for State purposes (see Restricted Powers):

Trade and Commerce within the State (see Restricted Powers):

Works—construction and promotion of public works and internal improvements, subject to the constitutional limitations (see Restricted Powers):”

Unquote                                                               

Comment:
As outlined above, municipal institutions and local government can only be a department of a State and any other description is a breach of the Commonwealth Constitution section 107.

The Parliament of Victoria did not have the authority to create section 74A of the Victorian Constitution Act 1975 and as such is ultra vires which is Latin for “made without authority or outside of power”.

Any Act passed by any Parliament is ultra vires, not lawfully enforceable if in contradiction inconsistent or repugnant to the Commonwealth Constitution.

Any Act that is in contradiction with the Commonwealth Constitution is not valid and is unlawful and the people of Victoria are entitled to disregard it.

 

Authority’s for the above statement:

  1. The Annotated Constitution of the Australian Commonwealth.
    Sir John Quick LL.D. and Sir Robert Randolph Garran, M.A.

    Quote:
    “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” (Norton v. Shelby County, 118 U.S. 425 10th May 1886).

  2.   Former Chief Justice Latham’s made the comments in a High Court decision; South  Australia v The Commonwealth 1942 (Uniform Tax Case) former Chief Justice Latham’s comments:

    Quote:

    “If either the Commonwealth Parliament or a State Parliament attempts to make a law which is not within its powers, the attempt fails, because the alleged law is unauthorized and is not a law at all”.

    “The courts have declared a statute invalid, sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it”.

    Unquote.

  3. Former Chief Justice Latham’s comments that he made in the matter cited above was reinforced by Justice Gageler in the matter of State of NSW v Kable (5 June 2013).The Commonwealth Constitution is the fundamental rule of law for the Governance of Australian. The law by which we are governed and is binding on all the people of the Commonwealth which include the Commonwealth/Federal Parliament, all State and Territory Parliaments, all Courts and Judges. Furthermore it is binding on all types of authority including the Police, all local government municipal institutions and/or councils.Councils came into Australia by means of the Australian Courts Act 1828 sXX (20). From there, Councils become municipal institutions and local government and made their way into the Constitutions of the Colonies as a Department of the State.The term local government was often clouded with the Government of the then Colonies by the UK Parliament. The UK Parliament, considered the Colonies to be Local Government.The fact is that municipal institutions or “local government” have been a legitimate part of our community for a long time now, but they could not then, and still cannot, claim to be any form or any type of Government.One of the questions, at the referendum which was held on the 3rd of September 1988 in relation to the recognition of Local Government into the Commonwealth Constitution, was clearly a question of inclusion of local government into the Commonwealth Constitution and not a question on whether the people want local government or not.As a result of that referendum and the non-inclusion of local government in the Commonwealth Constitution, no State Government can claim local government as a third or an essential tier of government.Additional information: The previous comments are also supported by Professor Anne Twomey, a Professor of Constitutional Law at Sydney University. Professor Anne Towmey’s comments were made during the joint select expert hearing on the recognition of local government on Wednesday the16 of January 2013:Professor Anne Twomey comments:

    Quote:

    “One of the reasons that is sometimes stated is that local government is a third level of government in Australia and it should be recognised in the Constitution. This, I think, is a bit of a misleading argument. Technically, local government is not a third independent level of government in Australia; it is a sublevel of government of state government”.

    Our Constitution is a dual system. It has two levels of government—a federal government and a state government”.

    Unquote.

    State Governments by means of Section 108 of the Commonwealth Constitution have the power to make laws for their respective State, but they do not have the power to make laws outside of their authority or to create or authorise any other body or organisation to make laws (Local Laws) or to become a third or an essential tier of government or any other form of government.

    More about Quick and Garran.

    Sir John Quick was a very prominent man in the formation of The Constitution having a substantial input into the Constitutional Conventional Debates held during the 1890s and was also very active, along with Sir Robert Garran in the creation of the book called Quick and Garran. The book, Quick and Garran is very heavily based on the Constitutional Conventional Debates and as such has become what could be considered as a 2nd reading speech in the Parliament as it sets out the purpose and reasons that The Constitution was framed in the way it was. Quick and Garran is called a book of authority and can be used in any Court in the world when relating to Australian constitutional matters. The High Court and the Privy Council has quoted from and used Quick and Garran as a book of reference on many occasions. In the case of the High Court, far too many to list, but more than 150 occasions and in the case of the Privy Council, on a few occasions.

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