Chapter 4 — The Commonwealth Constitution

Many years ago, the majority of schools in Australia taught children about the Commonwealth Constitution, yet today very few – if any – still do.  It is of great concern to us that this is not still part of the essential school curriculum, because the Constitution is such a vital document.  Sadly, very few people are aware of even the basics of our Commonwealth Constitution, and many incorrectly believe that it is irrelevant to them.

Most Australians don’t even understand that the Commonwealth Constitution and the Commonwealth of Australia Constitution Act 1900 (UK) are not one and the same.  The Commonwealth of Australia Constitution Act 1900 (UK) is the underlying Act that contains the Commonwealth Constitution.  The Commonwealth of Australia Constitution Act 1900 (UK) has nine parts (clauses), and it is actually the ninth clause which contains the Commonwealth Constitution.

The Commonwealth of Australia Constitution Act 1900 (UK) is the single most important piece of legislation in this country.  It is the people’s manual that Governments must abide by, and dictates precisely what the State and Federal Governments can and cannot lawfully do.

As a starting point, we have provided a copy of the standard, basic Commonwealth of Australia Constitution Act 1900 (UK) on our References CD, or you can download a copy of that document here

Once you open that document, you will see that there are some important sections to take note of within the Act itself, before we even get to the ninth clause, which contains the Commonwealth Constitution.

The first of these 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.  In fact, we are the, “supreme, absolute, uncontrollable authority”. (emphasis added) Quick and Garron page 286.

The preamble specifically states that “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.”

The words in bold above have very specific meanings that we need to look at in greater detail.

‘People’

• “Translated into Constitutional terms, it denotes that the Sovereign power which resides in the people is exercised on their behalf by their representatives.” (emphasis added)  Australian Capita v Commonwealth 1992
• “The powers of Government in this country are derived from the people, who are the ultimate Sovereign.” Ridgeway v Queen 1995
• “The truth is the supreme absolute, and uncontrollable authority remains with the people”.  Quick and Garron, The Annotated Constitution of the Australian Commonwealth, Page 286.

 ‘Almighty God’

• The creator of all life.
• As defined in the official King James Bible bearing the Royal Coat of Arms and being the first version of the English Bible with chapters and verses.
• Stemming from the first English version, being that of William Tyndale, released by Myers Coverdale in 1539.

‘Unite’

• “To join in an Act, to concur, to act in concert.”  Black’s Law 3^rd Edition.

‘Indissoluble’

• “The first step in the examination of the Constitution is to emphasize the primary legal axiom that the Crown is ubiquitous and indivisible in the King’s dominions.”  Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd., 31^st August 1920, High Court.

‘Ubiquitous’

• Adjective:  “existing or being everywhere, especially at the same time; omnipresent.”  Dictionary.com.

‘Commonwealth’

• The King James version of the Holy Bible, Ephesians  chapter 2, verse 12, says: “That, at that time, ye were without Christ, being aliens from the Commonwealth of Israel, and strangers from the covenants of promise, having no hope, and without God in the World.”

As you can see, the preamble was written very specifically, using particular words, to make it crystal clear to anyone reading it what the true purpose of the Act is.

The second section of importance is Covering Clause 5, which states that  “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 every part of the Commonwealth, not withstanding 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.”

So, if any Magistrate or Judge tries to tell you - as they often try to do - that “the Constitution doesn’t apply in this court”, you have an immediate response for him or her by quoting Part 1 of Clause 5, and reminding them that the Commonwealth Constitution is the highest law in the land, and is binding on all courts and judges.

Then we get into the Commonwealth Constitution itself - Clause 9.  The Constitution consists of 128 sections, which are divided into eight chapters, as follows:

CHAPTER I – The Parliament – is made up of five parts.

Part I –    General:

Part II –   The Senate:

Part III –  The House of Representatives:

Part IV –   Both Houses of Parliament:

Part V –    Powers of the Parliament:

CHAPTER II –      The Executive Government:

CHAPTER III –     The Judicature:

CHAPTER IV –    Finance and Trade:

CHAPTER V –      The States:

CHAPTER VI –    New States:

CHAPTER VII –   Miscellaneous:

CHAPTER VIII – Alteration of the Constitution:

We are not going to cover every single section in detail, but we will refer to the sections that we believe would be most relevant to most people, or those that we believe are important for you to understand. Again, we recommend that you take the time to read through at least the basic Constitution, which is available on our References CD or, you can download it here.

Chapter I, Part I – General

Section 1 - “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The Parliament,” or “The Parliament of the Commonwealth.”” (emphasis added)

This part does not mention anything about Parliament of Australia, Australian Government, Labour Government, Liberal Government, etc. as the media so often refers to.  Any reference to anything other than “The Parliament of the Commonwealth” is unconstitutional.

Chapter I, Part III – The House of Representatives

Sections 24 – 40 deal with the House of Representatives, and yet nowhere is there any mention of “Political Parties” so, once again, references to the Liberal or Labour Party are irrelevant in respect of the Commonwealth Constitution.

Chapter I, Part IV – Both House of the Parliament

Section 44i – “Any person who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is the subject or a citizen or entitled to the rights and privileges of a subject or a citizen of a foreign power; shall be incapable of being chosen, or of sitting as a Senator or a member of the House of Representatives.”

The Bill of Rights 1688 refers to a “foreign power” in the following ways:

• “whom it hath pleased Almighty God to make the glorious instrument of delivering this Kingdom from papery and arbitrary power”
• 13(9) “And whereas it hath been found by experience, that it is inconsistent with the safety and welfare of this protestant kingdom, to be governed by a popish prince, ……or shall hold communion with, the see or church of Rome…

Accordingly, any Roman Catholics, who swear allegiance to the Pope, are ineligible to hold a position in our Government.  We will explain this further in the Law v Legal chapter, where we detail how the Pope has brought private law into being.

Section 46 – “Penalty for Sitting when Disqualified: Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a Senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.”  This means that anyone within the Commonwealth of Australia has the right to sue any sitting member who is a Roman Catholic for compensation, for sitting when disqualified.

Section I, Part V – Powers of the Parliament

Section 51 – “The Parliament shall subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:” (emphasis added)   This means that all laws must be made according to the Commonwealth Constitution, and any laws that are repugnant to it are unconstitutional.

Section 51(ii) – “Taxation; but so as not to discriminate between States or parts of States;”  Given that “We, The People” make up the States, this section dictates that income tax brackets, for example, are illegal because they are discriminatory.

Pursuant to Section 51 (xiii) the Commonwealth has control over banking and the issuing of paper money. How paper money is specifically issued is then determined by the Bills of Exchange Act 1909(Cth) and the Currency Act 1965(Cth). 

Section 51(xv) - “Weights and Measures”.  This is why the National Measurement Act that we referred to in the “Fines” chapter takes precedence over any State statutes referring to the testing of speed detection devices.

Section 55 – “Laws imposing taxation, except laws imposing duties of Customs or of Excise, shall deal with one subject of taxation only;” (emphasis added)   What does GST stand for again?  Goods and Services Tax – that would be two subjects of taxation.  Accordingly, the GST is unconstitutional.

Section 58 – “When a proposed law passed by both houses of the Parliament is presented to the Governor–General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.”  (Emphasis added)   Once again, this section reaffirms that any laws must be made in accordance with the Commonwealth Constitution, and it also dictates that laws can only be enacted in the name of the Queen’s Most Excellent Majesty, as we referred to in the “Fines” chapter.

Furthermore, every Act must have a Proclamation.  A Proclamation is “a formal and public announcement” and, with respect to enacting laws, Butterworth’s Concise Australian Legal Dictionary defines it as “Publication of the consent of the Governor -General or the State Governor for the commencement of legislation by publication in the Government Gazette.”

Butterworth’s then defines ‘Government Gazette’ as “an official journal published by the Commonwealth, State and Territory Governments containing: proclamations bringing legislation into operation; notification of Government decisions and subordinate legislation; public service appointments and promotions; Government tenders and land acquisition notices; and electoral notices.”

No Act purportedly enacted since 1973 has this requisite proclamation, and has not been formally gazetted, and all such purported Acts are therefore of no legal force or effect.  Again, this is why completing a Notice for Discovery, requesting a copy of the Proclamation Certificate - as we detailed in the Fines chapter - is so powerful.

We have included a copy of a Proclamation Certificate on our References CD so you can see what one looks like, or you can download a copy here.

Chapter III – The Judicature

Section 71 – “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other justices, not less than two, as the Parliament prescribes.”(emphasis added)

Accordingly, a Magistrate’s Court, with a single Magistrate presiding, is not a court of competent jurisdiction, and is unconstitutional.  In fact, a Magistrate’s Court is actually a Star Chamber, and these were outlawed in 1641. Yet again, as we mentioned in our Fines chapter, this is why we recommend people challenge the jurisdiction of the court when they are fighting their fines because, until jurisdiction is proven – which a Magistrate’s Court clearly can’t do – the case cannot lawfully proceed.

Furthermore, a purported ‘Infringements Court’ (or similar) is also not a Constitutional, Chapter III Court, and cannot lawfully impose fines or penalties.  This is why, as we explained in our Fines chapter, and as Aussie Speeding Fines explain on their website and in their e-book, all fines are unlawful.

It is also why Section 8, Sub section 12 of the Imperial Acts Applications Act applies to all fines: because, unless you have been convicted by a Constitutional court, the fine is illegal and void.

Section 72 – 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.  If you are one of our more advanced members, you can ask people exercising this role for a copy of their certificate and/or oath of office.

Section 80 - Trial by Jury: “The trial on indictment of any offence against a 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.” (Emphasis added)

Butterworth’s 3^rd Edition defines an ‘indictment’ as a ‘presentment’, as the term ‘indictment’ has traditionally been reserved for the system of indictment before a Grand Jury.  Accordingly, a true Summons can only come out of a Grand Jury, and a purported ‘Summons’ to a Magistrate’s Court is purely administrative.

Chapter IV – Finance and Trade

Sections 81& 83 – “All revenues or monies raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject and liabilities imposed by this Constitution.”  As we explained in the “Tax” chapter, this is how the Government raises money for public projects.

Section 92 – “On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.” (Emphasis added)  Please keep this in mind any time some private corporation tries to charge you a ‘toll’ for using ‘their’ road.

Chapter V – The States

Section 106 - “The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth …” (Emphasis added) This section dictates that each State can have only one Constitution, not multiple Constitutions - with an "s". This is of particular significance in Victoria, which currently has two State Constitutions – the 1855 one and the 1975 one.

Obviously, this is unconstitutional, and legal maxims dictate that “first in time, best in law”.  Accordingly, any purported authority that stems from the 1975 Constitution, such as Victoria Police powers and Council powers stemming from the 1989 Local Government Act are all illegal and void.  Whilst the Courts may claim that the Victorian Parliament repealed the 1855 Constitution, as it is an Act of the British Parliament, no-one in the Commonwealth of Australia has the lawful authority to repeal it.

Furthermore, each of the State Constitutions, just like all Acts, must comply with the Commonwealth Constitution, and therefore, as you will see in Section 128 below, State Constitutions can only be altered by way of Referendum.  As a result, the numerous alterations that have been made to various State Constitutions are all unconstitutional.

Section 108 – “Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.”  (emphasis added)

This section dictates that any colony that becomes a State under the Constitution – which is all of them – is subject to the Commonwealth Constitution. This, again, reaffirms that all State laws must be consistent with the Commonwealth Constitution.

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.” (emphasis added)

You should refer to this section if you are issued with a fine 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.  Any suggestion that some State statute says that a speed detection device does not need to be tested and certified or can be tested and certified in some manner that is inconsistent with the National Measurement Act, is clearly invalid.

Section 115 – “A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.”  When you read this section in conjunction with Sections 9, 11, 16 & 22 of the Currency Act 1965, you will understand why you cannot lawfully and constitutionally discharge any State debt over an amount of $20.

Section 117 – “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.”(emphasis added)

This section raises some interesting points.  Firstly, as a subject of the Queen of the United Kingdom, you have protection under the Commonwealth Constitution.  However, as a citizen of the “Queen of Australia”, you have no protection and are subject to arbitrary rule, which we will cover further in the Law v Legal chapter.

Secondly, as a subject of the Queen of the United Kingdom, the section dictates 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 – i.e. having a radar detector in a State other than W.A., or being a “bikie” in Queensland.

Section 118 – “Full faith and credit shall be given throughout the Commonwealth to the laws, public Acts and records, and the judicial proceedings of every State.”  Keep this section in mind if a Magistrate tries to tell you, for example, that the W.A. Fisheries case – referred to in our Fines chapter - doesn’t apply in your State.

Chapter VIII – Alteration of the Constitution

Section 128 – “This Constitution shall not be altered except in the following manner:"

The explanation in section 128 is quite complex, but we have simplified it to: Each house of Parliament approves by a majority vote the law to be amended or repealed, and the question that is put to the electors of each State within a time limit once the process is under way.

This is an important section as the reality to those in Parliament is that they must seek the Will of their Constituents before going to Referendum, as it is only ‘The People’s Will” that can make up what ‘The People’ desire, and that is then reflected in the proposed question. We have had 44 referendums since 1906, of which only 8 have been given a ‘yes’: those statistics speak for themselves, as different Parliaments have formulated their own questions without properly consulting ‘The People’, so the people take the safe option and vote ‘no’.

As we mentioned in reference to Section 106 above, this means that State Constitutions, which are subject to the Commonwealth Constitution, can also only be amended in the same way.

The fact is that the power to alter a Constitution or, in fact, governments themselves, lies with ‘The people’ - “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.” Luther v Borden 48 US  1. 12 Led. 581

As comprehensive as this chapter is, it is really only a brief introduction to the Commonwealth Constitution.  Again, we recommend that you read through at least the basic Constitution yourself in order to familiarise yourself with your role and what part we all play, and what protections are guaranteed under the Constitution.

If you want to understand the Constitution thoroughly, we recommend you get a copy of the complete Quick and Garran Constitution, which contains a full 1008 pages, and includes detailed commentary on each of the sections, as well as the various Constitutional debates that led to the creation of each of those sections.  We have a fully indexed copy of that Quick and Garran Constitution available on CD on our Products page, which makes it much easier for you to search for a particular topic or subject than trying to wade through the whole 1008 pages on your own.

Go back to Chapter 3 or move onto Chapter 5.