Local Government in Australia

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Local government:

Mandatory voting:

Commonwealth Electoral Act 1918about:blankEmbed URLPaste a link to the content you want to display on your site.EmbedLearn more about embeds(opens in a new tab)Sorry, this content could not be embedded.Try again Convert to link

As a protestant and subject of the Queen of the UK, my religious and constitutional duty requires me to abstain from voting.

(But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half‑pay, or a pension by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.)

The Commonwealth Constitution of Australia Scholar select – W Harrison Moore Page 600 states: Constitutional amendment , on the other hand is a power enjoyed by the people in the ordinary course… it was the people of the Colonies who  adopted the Constitution and the people who should amend it.

Section 128 : And if a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queens Assent.

On the 3rd of September 1988 a referendum failed whereby one of the things that was proposed was the recognition of local government. This was rejected.https://constitutionwatch.com.au/conflict-of-interest-in-local-government/embed/#?secret=gZj5jHEdfK#?secret=Orq8z4MrODabout:blankEmbed URLPaste a link to the content you want to display on your site.EmbedLearn more about embeds(opens in a new tab)Sorry, this content could not be embedded.Try again Convert to link

A Proposed Law: To alter the Constitution to recognise local government.

Do you approve this proposed alteration?

Total for Commonwealth      10,362,959      9,537,725        3,163,488        33.61%            6,248,166            66.39%            126,071

Obtained majority in no State and an overall minority of 3,084,678 votes. Not carried.

In Luther v Borden 48 US 1. 12 Led. 581 we see that “The governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them. But the people, as the original fountain, might take away what they have delegated and entrust to whom they please… The sovereignty in every State resides in the people of the State and they may alter and change their form of government at their own pleasure”.

 The Commonwealth Constitution states:
Preamble: 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 Britian and Ireland, and under the Constitution herby established.

Section V: This Act and all laws made by 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 anything in the laws of any State.

Section 106: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Section 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Note section 109. After the failed referendum in 1928 we can now clearly see that the Commonwealth Constitution, as a reflection of the will of the people, does not support local government, as an attempt to allow that failed. So if the Commonwealth Constitution does not support local government, but the Victorian Constitution does, then that part is inconsistent, and thus becomes invalid.
Therefore local government has no legal power to fine anyone for not voting.

Null and Void/ Repugnant laws:

Section 128 of the Commonwealth Constitution describes the method of altering the Constitution:  This Constitution shall not be altered except in the following manner: (the final part) And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s Assent. No Alteration diminishing… shall become law unless the majority of electors voting in that State approve the proposed law.

I’d like to draw attention to section 109 of the Commonwealth Constitution which states that “When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.”

Also worth noting is the many times the constitution makes it clear that laws are SUBJECT TO THIS CONSTITUTION.

(Section 2, Section 8, Section 9, Section 10, Section 27, Section 31, Section 51, Section 52, Section 58, Section 76, Section 87, Section 106, Section 108, – of course Section 109 – )

So we know laws can be void. The Commonwealth Constitution of Australia -W Harrison Moore states on page 383 (which is a whole chapter about unconstitutional legislation) that: An Act of Parliament which deals wholly with matters not granted to the Legislation, or with matters withheld from it, or exercises power in a forbidden way, is void… Thus, when it is once established that some part of an Act of Parliament is invalid, the ordinary presumption in favour of the validity of a legislative Act gives way.

On page 570 it states clearly that: “in the case of The Commonwealth Constitution sec 92 establishes specifically that freedom of trade, commerce, and intercourse which the implied will of Congress imposes in the United States. In that it is Explicit and not Implicit, it is stronger than the American Constitution. It is secured also against any impairment by the Commonwealth Parliament , that Parliament cannot, like Congress, remit the obligation of the States to respect the freedom…. It also imposes restrictions upon the Parliament, which cannot by any Act of its own impair freedom. In one sense, every condition or regulation laid upon inter-State commerce is a restriction of its freedom.” (check out Fox v Robbins)

http://chrisfieldblog.com/2010/10/18/australian-law

Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
“Common expressions such as: ‘The Courts have declared a statute invalid’,” says Chief Justice Latham, “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. Naturally, he will feel safer if he has a decision of a court in his favor, but such a decision is not an element, which produces invalidity in any law. The law is not valid until a court pronounces against it – and thereafter invalid. If it is beyond power it is invalid ab initio.”

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17 June 1999)
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as Latham CJ said of invalid legislation, “he will feel safer if he has a decision of a court in his favour”. That is because those relying on the earlier decision may seek to enforce it against Mr Gould.

WATSON v LEE (1979) 144 CLR 374   BARWICK C.J.
To bind the citizen by a law, the terms of which he has no means of knowing, would be a mark of tyranny.

 Imperial Act 36 Edward III of 1363, Chapter 9. That Imperial Act promises that cases brought to the court will be heard.

“If any man feeleth himself grieved contrary to any of the Articles above written, or others contained in divers Statutes, will come into the Chancery, or any for him, and thereof make his Complaint, he shall presently there have Remedy by Force of the said Articles or Statutes, without elsewhere pursuing to have Remedy.” 36 Edward III of 1363, Ch 9

such denial of applications for justice also constitutes breach of the Crown’s Promise specifically that justice will not be deferred.

Magna Carta 1297 Statute Clause 29
“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Note the recent finding of the High Court regarding dismissing applications summarily.

Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010)
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said: “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried“.

 All such developments in Australia are to be ignored and also to be resisted.

LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINIDAD and TABAGO (1936) A.C. 332, at 335
“But whether the authority and position or an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way, the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man

Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942
“Common expressions such as: ‘The Courts have declared a statute invalid’,” says Chief Justice Latham, “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. Naturally, he will feel safer if he has a decision of a court in his favor, but such a decision is not an element, which produces invalidity in any law. The law is not valid until a court pronounces against it – and thereafter invalid. If it is beyond power it is invalid ab initio.”

Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471
Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack.”

Habeas corpus [1640] 16 Charles I c. X
“that none be put out of his franchise or freehold, unless he be duly brought to answer, and forejudged of the same by the course of the law, and if any thing be done against the same, it shall be redressed and holden for none….
That no man of what estate or condition forever he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, without being brought in to answer by due process of law
That no man be put to answer, without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land, and if any thing be done to the contrary, it shall be void in law and holden for error…”

Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 278
“In my opinion, where the prior decision is manifestly wrong, then, irrespective of the consequences, it is the paramount and sworn duty of this court to declare the law truly….”

Also it’s worth noting Section 71 of the Commonwealth Constitution: The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Local government is a business (which has no legal power) https://constitutionwatch.com.au/local-government-victoria-is-a-business-unit/https://constitutionwatch.com.au/local-government-bill-memorandum-1988/embed/#?secret=YlDKa52Puz#?secret=taxYiIgPu5https://constitutionwatch.com.au/local-government-funding-and-constitutional-recognition/embed/#?secret=XJQa8FRjTm#?secret=RHFyaN7bn5

The referendum will be the third attempt to have local government recognised in the Australian Constitution following failed attempts in 1974 and 1988. 

Fines etc

Commonwealth Constitution Act: Section 115: A State may not make anything but gold and silver coin a legal tender in payment of debts.

Section 118: Full faith and credit shall be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial procedures of every State.

http://classic.austlii.edu.au/au/legis/vic/consol_act/ca1975188/s3.html

    (1)     Subject to the Imperial Acts Application Act 1922 [2] all laws and statutes in force within the realm of England on the 25th day of July, 1828 (not being inconsistent with any law now in force) shall be applied in the administration of justice in the courts of Victoria, so far as they can be applied within Victoria.

Imperial Acts Application Acts 1980 (Vic) Section 8, Habeas Corpus (High Court case Port or Portland v State of Victoria.

Imperial Acts Application section 8 sub section 12: (http://www5.austlii.edu.au/au/legis/vic/consol_act/iaaa1980240/s8.html ) “12.     And several grants and promises made of fines and forfeitures, before any conviction or judgement against the persons, upon whom the same were to be levied.

All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm:

That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void.

Bill of Rights section 12: That all grants and promises of fines and forfeitures of a particular person before conviction are illegal and void.

The Annotated Constitution of the Australian Commonwealth Page 336,337 section 318 states: “The Bill of Rights (1688) is of special interest as declaring that certain recited rights are ‘the true ancient and indubitable rights and liberties of the people to be firmly and strictly holden and observed in all times to come”

It also states on page 867 (section 721) that “… the prohibition against laws impairing the obligation of contracts (Art. I., sec X. I.). These limitations are the foundation of the rule that “vested rights must not be disturbed” (Cooley, Const. Lim., p357)”

Currency Act 1965 sections 9, 11, 16 and 22 (cannot lawfully and constitutionally discharge any debt over an amount of $20)about:blankEmbed URLPaste a link to the content you want to display on your site.EmbedLearn more about embeds(opens in a new tab)Sorry, this content could not be embedded.Try again Convert to link

Currency Act 1965

Authoritative Version

– C2016C01090

In force – Latest Version

View Series

Section 9: 9  Transactions to be in Australian currency 

(1)  Subject to this section, every sale, every bill of exchange or promissory note, every security for money, and every other contract, agreement, deed, instrument, transaction, dealing, matter or thing relating to money, or involving the payment of, or a liability to pay, money, that is made, executed, entered into or done, shall, unless it is made, executed, entered into or done according to the currency of some country other than Australia, be made, executed, entered into or done according to the currency of Australia provided for by this Act.

             (2)  Nothing in this section operates so as to invalidate a will or other testamentary instrument.

Section 11: 11  Payments to be made in currency under this Act

             (1)  Every payment that is made shall, unless it is made according to the currency of some country other than Australia, be made according to the currency of Australia provided for by this Act.

             (2)  For the purpose of making a payment that was payable before 14 February 1966, but is not made until on or after that date, the amount of money in the currency provided for by this Act that corresponds to an amount of money in the currency provided for by the repealed Acts is, subject to subsection (3), an amount calculated on the basis of the equivalents specified in subsection (4) of section 8.

16  Legal tender

             (1)  A tender of payment of money is a legal tender if it is made in coins that are made and issued under this Act and are of current weight:

                     (a)  in the case of coins of the denomination of Five cents, Ten cents, Twenty cents or Fifty cents or coins of 2 or more of those denominations—for payment of an amount not exceeding $5 but for no greater amount;

                     (b)  in the case of coins of the denomination of One cent or Two cents or coins of both of those denominations—for payment of an amount not exceeding 20 cents but for no greater amount;

                     (c)  in the case of coins of a denomination greater than Fifty cents but less than Ten dollars—for payment of an amount not exceeding 10 times the face value of a coin of the denomination concerned but for no greater amount;

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