THE AUSTRALIAN CONSITUTION, DOES IT EXIST?
The question relating to recognition of local government/councils must be asked!
The High Court of Australia ruled that “State Governments could not raise ANY TAX” and because of this the ‘State Excise on Fuel, Tobacco & Alcohol’ was removed.
It can be clearly seen that the authors of the Constitution were not allowing for any Parliament other than the Federal Parliament to impose a tax. Therefore, the only land rates/tax that can be imposed within Australia is one imposed by the Federal Parliament through the Commissioner for Taxation.
Unless we receive a “Rates Notice” from the ‘Commissioner for Taxation it is INVALID and UNLAWFUL.
Clearly in sections 51 and 52 of the Constitution and from the Constitutional Commission (1985 – 1988) report that the power of taxation is held exclusively by the Federal Parliament.
Since parliaments of Australia has no powers under the Australian Constitution to impose taxes, which has been, determined where The High Court of Australia ruled, “State Governments could not raise ANY TAX” and therefore, “Land Tax” is unlawful. The state governments will have to lodge an appeal to the High Court of Australia to overturn the previous decision before they can legally impose such tax upon the people or have the federal Government hold a referendum to alter the constitution.
Section 109 of the Australian Constitution states:
“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.”
Because the Parliaments of Australia are subject to the Commonwealth Parliament and also subject to the Commonwealth Constitution, the states cannot lawfully impose a ‘Land Tax’, ‘only the Commonwealth Government holds such taxation authority’.
“The very same applies to local governments continuance and application of rates and taxes issued on their behalf”
(State governments cannot be awarded powers from the commonwealth that are not theirs to hand over)
Until the State’s of Australia can provide a legal authority either from the High Court of Australia; or from the Federal Government giving authority to raise taxes, to comply with your intentions would be in breach of the law itself, that you are bound to uphold. When you present such legal authority we will certainly provide the information you request.
COUNCILS ILLEGAL UNDER THE CONSTITUTION
LOCAL GOVERNMENTS ARE ILLEGAL UNDER THE COMMONWEALTH CONSTITUTION DETERMINED BY TWO REFERENDUMS
18 May 1974 & 3 September 1988
The Australian Electoral Commission on their CD “Australian Referendums 1906—1999” have advised the following points:-
- “Under the Australian Commonwealth Constitution any powers not delegated to the Commonwealth are the prerogative of the States UNLESS THEY ARE SPECIFICALLY DENIED.”
- The Referendum on 18th of May 1974
Q4. Local Government Bodies – The fourth proposal sought to amend section 51
of the Constitution to give the Federal Government power to give financial
Assistance to lend and borrow money for any local government body.
- The people voted NO.
- Q4. The referendum was NOT carried.
One State recorded a YES vote (NSW), however; nationally only 46.85% of electors voted YES.
TODAY WE HAVE THE FEDERAL GOVERNMENT FUNDING LOCAL GOVERNMENT INDIRECTLY THROUGH LOCAL GOVERNMENT IN CONTRAVENTION OF THE CONSTITUTIONAL WILL OF THE PEOPLE, AND LOCAL GOVERNMENT TAXING THE PEOPLE AGAIN WITH OUT LEGAL AUTHORITY.
- The Referendum on 3rd of September 1988
Q3: Constitution Alteration (Local Government) 1988.
Q3.To alter the Constitution to recognise local government
- The people voted NO.
- Q3. The referendum was NOT carried.
No States recorded a YES vote. However; nationally only 33.62% of electors voted YES.
- The legislative proposal was, “119A. – Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in
Accordance with the laws of the State and empowered to administer, and to make bylaws, for their respective areas in accordance with the laws of the State.”
- Unlike a plebiscite, a referendum is binding on the government.
THE FEDERAL GOVERNMENT RECOGNITION OF LOCAL GOVERNMENT IS IN DIRECT CONTRAVENTION OF THE CONSTITUTIONAL WILL OF THE PEOPLE.
The Commonwealth Government is funding Local Governments directly contrary to the Constitution.
All local government has been constitutionally illegal since 3-9-88 when there was a referendum to incorporate local Government into the Australian Constitution, and prior to the referendum, there has never been any implied legality.
This means that all local government authorities now operate without a lawful head of power. The legal bind is that states cannot retain legislation that condones any form of local government.
Thus all levels of government are operating illegally ignoring the instructions of the people. If the government will not obey the Constitutional Will of The People and thus democratic law, why should the people obey parliamentary law? The precedence has been set.
FURTHERMORE Local Government Rates are deemed a tax thus no GST is applicable.
Clearly in sections 51 and 52 of the Constitution and from the Constitutional Commission (1985 – 1988) report that the power of taxation is held exclusively by the Federal Parliament. No states have authority under the constitution to impose a tax. Clearly in sections 51 and 52 of the Constitution and from the Constitutional Commission (1985 – 1988) report that “The power of taxation is held exclusively by the Federal Parliament.” Thus Local Government Rates being a tax are unlawful and in breach of the constitution.
LOCAL GOVERNMENT IS NOT RECOGNISED WITHIN THE AUSTRALIAN CONSTITUTION AND WAS REJECTED
AT REFERENDUM OF THE AUSTRALIAN PEOPLE IN SEPTEMBER 1988 THEREFORE LOCAL COUNCIL HAS NO LAWFUL BASE
Thus Councils Should Be Dismissed And Local Government Department Administrators Appointed Permanently.
1. In no section within the Australian Constitution is there provision for the Federal or State Parliament to establish a third level of government without the permission of the people via a Federal Referendum.
2. The High Court of Australia ruled that “State Governments could not raise ANY TAX”, and because of this the ‘State Excise on Fuel, Tobacco & Alcohol’ was removed.
3. It can be clearly seen that the authors of the Constitution were not allowing for any Parliament other than the Federal Parliament to impose a tax. Therefore, the only land rates tax that can be imposed within Australia is one imposed by the Federal Parliament through the Commissioner for Taxation.
4. Unless we receive a “Rates Notice” from the ‘Commissioner for Taxation it is INVALID and UNLAWFUL.
5. Clearly in sections 51 and 52 of the Constitution and from the Constitutional Commission (1985 – 1988) report that the power of taxation is held exclusively by the Federal Parliament.
6. The Courts of Australia have long held that council rates are a tax. Yet, under the Australian Constitution, the Parliaments of the States do not have the power of taxation.
7. “John Winston Howard, Peter Howard Costello & ’Commissioner for Taxation’ Michael Joseph Carmody all stated before the introduction of the infamous “Goods and Services Tax”,
Quote: “Local government Council Rates will attract no GST because Council Rates are a tax and we can’t tax a tax”.
8. The organizations known as ‘local government’ did not exist at the time of the federation of the states into a commonwealth.
9. A ‘rateable person within the meaning of the local government act 1995’ did not exist at the time of the federation of the states into a commonwealth. It can be seen then, that since ‘local government’ did not exist at the time of Federation, then there can be no continuance of local government law.
10. Since ‘local government’ did not exist at the time of Federation, then there can be no continuance of ‘local government’ law. Similarly, as ‘local government land rates tax’ did not exist at the time of Federation there can be no continuance of ‘local government land rates tax’ from that time to now.
11. Following a recommendation of the Constitutional Commission of Inquiry (1985 – 1988) a Referendum was held in September 1988. (“The Constitutional Commission found that there was no basis in law, contained within the Constitution for the provision of ‘Local Government”). They found that barely 50% of the population even knew of the existence of the Constitution, let alone its contents, and that only a few percent of those under 25 years of age knew of its existence at all.)
12. Question 3 from the referendum was: A Proposed Law; ‘To alter the Constitution to recognise local government.’ Do you approve of this alteration?
13. The specific (federal Referendum) proposal was:-
(3) Constitution Alteration (Local Government) 1988…. 119A, “Each state shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the state, and empowered to administer, and make by-laws for, their respective areas in accordance with the laws of the state”.
“Note; the word CONTINUANCE, implies the Australian people voted NO to the existence and continuance of local government, full stop”
14. It was recognized that the Parliaments of the States did not have the power to establish a third tier of government via ‘local government’ and an amendment to the Constitution was necessary for them to obtain these powers.
15. If the Constitution had to be altered to allow for the establishment of ‘local government’, before there could be a continuance of ‘local government from the time of federation, then it is clear that these powers did not exist at the time of the Federation of the States into a Commonwealth.
16. Therefore, if the Constitution had to be altered to allow for the “establishment and continuance” of ‘local government’ these powers did not exist at the time of Federation or sections 106 to 108 of the constitution would have applied and the constitution would not have had to be altered.
17. For the Constitution to be able to be changed, there must be a majority, (either for or against), in each state and a favourable majority must be returned in a majority of States.
The Australian Electoral Commission advice:-
“Referendum results – 3 September 1988”
“(41) Local Government”, being totally reject by 3 084 678 votes of the Australian people.
“A Proposed Law: To alter the Constitution to recognise local government.”
“Do you approve this proposed alteration?”
“The Constitution recognises government at the Commonwealth and State levels but makes no mention of local government. Constitution Alteration (Local Government) 1988 sought to give such constitutional recognition to local government.”
18. “Obtained majority in no State and an overall minority of 3 084 678 votes.”
19. Therefore the continuance of Local Government in defiance of the referendum vote of the people is unlawful? Thus the Ministers would be acting in accordance with the Australian people’s referendum results if they dismissed any local Council. In fact it is encumbered upon them to explicitly follow the instruction of people’s referendum and dismiss all councils.
20. No other conclusion can be derived from this result other than that Local government was not legally recognized by the people of Australia, who are the Government of Australia through their agents in Parliaments.
21. The Parliament of the State did not have these powers before the Referendum, and they were most certainly prohibited from having them after the Referendum.
22. This was confirmed by the Parliament of NSW Legislative Council General Purpose Standing Committee (No 5), Report 19, Local Government Amalgamations, December 2003 which states on page 51, at 4.78: “Local Government is not recognized in the Australian Constitution. In 1974 and 1988 constitutional recognition of local government was considered in referenda to change the constitution but neither referendum was successful.”
23. The members of the various Parliaments of the States and the Commonwealth are the elected representatives of the people of Australia. They are not there as representatives of the Parliaments, but as elected servants of the people. Twice, in 1974 and in 1988 the people of Australia (the Government) told their elected representatives that they did not wish to constitutionally recognize local government.
24. Since the people do not wish to recognize ‘local government’, and since the Constitution does not recognize or grant the power to establish a third level of government, then under Section 109 of the Constitution it was illegal for any Parliament of Australia to enact the Local Government Act’s.
25. The 1988 Referendum was a public act under the Federal Constitution. Sections 106 and 108 subject the Constitutions of the States to the over-riding authority of the Federal Constitution and Section 118 requires that full faith and credit be given throughout the Commonwealth of Australia to the laws and public acts and records of every State. If full faith and credit is given, there appears to be NO LEGAL WAY any States can overturn the specific outcome of a Federal Referendum
26. The Referendum (Constitution Alteration) Act of 1906-1973 is a Commonwealth of Australia Act. The Schedule of the Referendum Act provides the wording of the “Writ for Referendum” and includes the words:
27. “We (the Electorate) command that you (the parliament) cause a proposed law entitled… ……… to be submitted, according to law, in each State to the electors qualified to vote for the election of Members of the House of Representatives” (for each of the six states). It is clear that a “Writ” directs that a Federal Referendum must be by way of a vote state by state. This has the same effect as a state referendum, but under the Federal Act, by doing so invokes Section 109 of the Australian Constitution as an authority that over-rides any inconsistency in the legislation of the States.
28. Since the state parliament’s of Australia has no powers under the Australian Constitution to create a Third Tier of Government, and since they were twice told by the people they serve that the people did not wish to recognize Local Government, then the enactment of the Local Government by-laws and and state government legislation relating to local government/councils is illegal.
29. The Constitution was formatted to protect the Australian people from a number of things, and also to give the people of Australia the ability of Self Determination of Government.
I make note at this stage, that the above issue is one that has opened the door to many similar issues, as a direct result of the people being unaware of their rights, all be them confusing and hard to understand for the lay person.
The judiciary of this country make a habit of undermining what little rights the Australian citizen is entitled to, using such words “The constitution has no place in the courts” yet the constitution Act is what empowers the courts, and clearly by way of Clause 5 of the Act.
NOWHERE DOES IT PERMIT THE PARLIAMENTS, OR THE JUDICIARY, TO OPERATE OUTSIDE THESE GUIDELINES.
Here is a brief list of other offending statements and actions seen on a regular basis in Australian courts and parliaments, which attack the core values of our constitution.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 80
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Yet we see trial by jury denied in many cases, where indeed it can only be denied by the mutual decision of both parties to an action.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 42
Oath or affirmation of allegiance
Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor‑General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution
Juliar Gillard ignored section 42, as have several representatives, which makes a mockery of our highest laws, and clearly shows many supposed representatives are not elected and or have any right to hold office. (full article on my site http://www.markmaldridge.com
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 47
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
The Parliament no longer hear such cases, and state electoral legislation now allows disputed returns to be heard by a single judge, overriding once again our constitutional protections, in a case I held in 2010, the outcome “Regardless of the conduct of an election, a general election cannot be invalidated” even when the election under common law strayed so far from the legislative protections it was not an election at law.
Going further, the aforementioned case evidenced tens of thousands of missing names, tens of thousands of missing ballot papers and over 25 offences of the protections of the act itself. (full details under the article “Democracy the whole truth” on my website
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 117
Rights of residents in States
A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
Therefore issues like the trial of the basics card in underprivileged areas, is again legislation that offends this Act, it also implies that the bill of rights enjoyed by the Victorian residents, by way of this section, applies to all Australians, which would undermine most recent legislative changes, which all have sections that are ignorant of the protections we deserve.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – CLAUSE 5
Operation of the Constitution and laws [see Note 3]
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 anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.
If referenda are of value to the constitution and its primary goals, then referenda results apply across the Nation in every parliament and court.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 8
Qualification of electors
The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.
The constitution allows one vote, not a vote that can be devalued and or passed on, without the will of the elector being known, in fact recent election conduct, has exposed that an electoral commission may “guess and electors intent beyond that they have marked” allowing a single vote to be transferred, even if the electors mark determines a different result of their will. (see result of court of disputed returns 2007 SA supreme court acting as)
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 109
Inconsistency of laws
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.
Yet go to court over say a speeding fine, to find the devise that is telling the court you were committing an offence, does not comply with commonwealth legislation, but it does comply with state legislation, and the later is upheld, we indeed have issues.
Recently in the courts I proved a current devise did not comply with law, state or commonwealth, yet the outcome was the fine still stands, so has the law become an ass?
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT – SECT 128
Mode of altering the Constitution [see Note 1]
This Constitution shall not be altered except in the following manner:
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first‑mentioned House will not agree, and if after an interval of three months the first‑mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first‑mentioned House will not agree, the Governor‑General may submit the proposed law as last proposed by the first‑mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.
When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one‑half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.
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 the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.
If the people say NO, that means NO, it the constitution is to be altered, then we have the final say, we the people, the terms are simple.
Mark Aldridge Independent Candidate
Tags: 2013 referendum, Australian law, Australian Politics, Australian rights, Bill of rights, councils, Democracy, democracy Australia, Dodgy elections, Elections Australia, Independent, Labor, Labor party SA, local council recognition, Mark Aldridge, Mark M Aldridge, The constitution Act 1901, The Constitution of australia