The Commonwealth of Australia Constitution Act 1900 is the single most important piece of legislation in this country and dictates precisely what the State and Federal governments can and cannot lawfully do.
We recommend that you all download a copy of that document – which you can do here – and read through it.
There are a couple of very important points to note about the Commonwealth Constitution and the Commonwealth of Australia Constitution Act that is the underlying Act that contains the Commonwealth Constitution.
The Commonwealth of Australia Constitution Act 1900 has 9 parts and the ninth part contains the Commonwealth Constitution. However, there are some important parts to take note of before you get to part 9.
The first of those is the preamble, which states that it is “We, The People” that have the power to bring the Commonwealth of Australia Constitution Act into being. We are the highest law in the land.
The second covers clause 5, which states that the Act “shall be binding on the courts, judges, and the people of every State and of every part of the Commonwealth...” So, if any Magistrate or Judge tries to tell you that “the Constitution doesn’t apply here”, you have an immediate response for him or her.
Then we get into the Commonwealth Constitution itself at part 9.
Some of the most important sections that will be relevant to you would be the following:
Section 72 – which deals with the appointment and dismissal of judicial officers. All Judges must comply, so must police or anyone acting in a role of judicial/enforcement capacity. Ask for a copy of their certificate and/or oath of office.
Section 92 – which dictates that intercourse amongst the states shall be absolutely free. Remember this the next time some private corporation tries to charge you a “toll” for using “their” road.
Section 108 – which dictates that any colony that becomes a State under the Constitution – which is all of them – is subject to the Constitution.
Section 109 – this goes on to state that, where there is a conflict between a State law and a Commonwealth law, then the latter shall prevail. Remember this next time someone tries to fine you based on a speed detection device that doesn’t comply with Section 10 of the National Measurement Act - which is, of course, a Commonwealth Act.
Section 115 – which details the fact that a State shall not make ANYTHING other than gold or silver coin legal tender in payment of a debt. Remember this any time you have any State debt to “pay” that is over $20 – see Sections 9, 11, 16 & 22 of the Currency Act 1965 for further details.
Section 117 – which states that a person cannot be subjected to any discrimination because of a law that exists in one State but not another. Keep this in mind if you are ever charged for an offence in one state that is not an offence in another – ie having a radar detector in a State other than WA, or being a “bikie” in QLD.
Section 118 – which states that full faith and credit will be to the laws, acts and public records, and the judicial proceedings of every State. Remember this when someone tries to tell you, for example, that the WA Fisheries case doesn’t apply in your State, or when the police publicly admit that speed cameras have been proven to be faulty!
There are, of course, many other important sections of that fundamental document, but we believe that these are the ones that the average person can relate to on a day-to-day basis.
If you are interested in finding our more about our Commonwealth Constitution and the application of it, we urge you to attend one of the CLRG meetings which are currently held every week in Victoria or, if you can’t make it to one of those then, at the very least, visit their extremely informative website at www.clra.info
For those that want to research the Constitution even further, we recommend that you order our fully indexed, 1008 page, Quick and Garran Annotated Constitution CD from our Products page. This CD gives you a comprehensive explanation of every single part of the Commonwealth Constitution.
Now, whilst we’re on the subject of Constitutions, do you realise that each State also has its own Constitution? Well, if you live in Victoria, guess what – you actually have two!
How can that be, you may ask – the fact is that it can’t!
The issue is that the 1855 Victorian Constitution was never repealed, the Victorian Parliament just decided to make a new one in 1975 instead. Unfortunately for them, there is a legal maxim that dictates that “first in time, best in law” applies and, therefore, the 1855 Constitution takes precedence over the 1975 one. Also, Section 106 of the Commonwealth Constitution clearly states that “The constitution of each state ...” – that means that there can only be ONE Constitution for each State.
So, if you ever have a court case that involves the State of Victoria and they refer, in any way, to the 1975 Constitution, the above will be your response.
What about the Australia Act?
People often contact us saying things like "The Court says none of this applies since the introduction of the Australia Act in 1986". How do you combat statements like that?
Well, as we have explained on a number of our radio shows, there are some fundamental issues with the Australia Act. Some of these are:
- The Australia Act has no head of power. The head of Power under the Constitution is the Crown of the United Kingdom and Ireland.
- The Australia Act was enacted by the "Parliament of Australia" which is NOT recognised as a legislator under section 1 of the Commonwealth Constitution.
- The Australia Act was an attempt to equalise powers exclusive to the Federal Government to that of the States by allowing the States to put aside any obligations to the inherited laws of England and obligations to the Federal Government, this attempt was put to the people in question 2 of the 1984 Federal Referendum and failed.
States Vote in favour and percentage of "Yes" votes.
|Interchange of Powers
to enable the Commonwealth and the States voluntarily to refer powers to each other
|26 October 1984||1 December 1984||Not Carried||None||47.06|