Chapter 5 — Local Government

There are many issues relating to the concept of Local Government that affect our everyday lives – parking fines, rates, and a whole range of by-laws that are enforced by local councils, who believe that they are authorised under various Local Government Acts to operate as a third tier of Government.

However, as we explained in the previous Constitution chapter, the Commonwealth Constitution, which is the highest law in the land, dictates that there can only be two levels of government, and they are Federal and State. Federal Government is also known as Commonwealth Government, and State Government is also known as Local Government. Local Councils, however, seem to think that they have been magically empowered by the States to operate as a third tier of Government, completely contrary to the Commonwealth Constitution.

Whilst the Constitutions of each State and the Commonwealth do, indeed, authorise the State governments to make laws with respect to local governments, State Parliaments do not have the authority to empower private corporations – which is all local councils are – to act as local government bodies.

Having said that, very few people realise that Municipal institutions and Local Government are specifically mentioned in the Commonwealth Constitution, but only as a department of the State Government – please refer to pages 935 and 936 of the Quick and Garran Annotated Constitution.

This means that, like other departments, such as the Health Department and the Education Department, for example, they are subject to certain limitations.  Departments of States have no lawful authority to issue fines or take property as they are not a court, as per the description of a ‘court’ in section 71 of the Commonwealth Constitution.

They also have no lawful right to tax the value of the property, as only the Federal Government is empowered to collect taxes.  Accordingly, all rates (which are simply taxes) are unconstitutional, as the tax is based upon the value, not the property. You’ll quickly find that if the tax is not paid, the local council - a private corporation which is now masquerading as a Local Government body – can then magically take the property in lieu of payment, which is a power that not even the Commonwealth can exercise without satisfying the ‘just terms’ clause of section 51(xxxi).

In 1988, the Commonwealth Government proposed a law to alter the Commonwealth Constitution to recognise Local Councils as Local Government.  Question 3 of that 1988 Referendum was worded as follows:

“The Australian Constitution recognises Government at Federal and State levels, but makes no mention of local government. Constitution Alteration (Local Government) 1988 proposed to alter the constitution so as to recognise local government.”  

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

Do you approve this proposed alteration?

The results of the response to the referendum are tabled below:
State	Onrolls	Ballotsissued	For		Against		Informal
				%		%
New South Wales	3,564,856	3,297,246	1,033,364	%31.70	2,226,529	%68.30	37,353
Victoria	2,697,096	2,491,183	882,020	%36.06	1,563,957	%63.94	45,206
Queensland	1,693,247	1,542,293	586,942	%38.31	945,333	%61.69	10,018
South Australia	937,974	873,511	256,421	%29.85	602,499	%70.15	14,591
Western Australia	926,636	845,209	247,830	%29.76	584,863	%70.24	12,516
Tasmania	302,324	282,785	76,707	%27.50	202,214	%72.50	3,864
Australian Capital Territory	166,131	149,128	58,755	%39.78	88,945	%60.22	1,428
Northern Territory	74,695	56,370	21,449	%38.80	33,826	%61.20	1,095
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

As a result of the Will of the People, being clearly expressed in their response to that question, the Federal Government had a responsibility to ensure that Local Councils were not recognised and/or given authority to act as a de-facto third tier of Government.  However, the States soon started bringing in various Local Government Acts, the first was Victoria in 1989, which was only one year after the 1988 referendum.  Once that Act was unlawfully passed by the Victorian Parliament, the other States quickly followed suit.

As we mentioned in the Fines chapter, with reference to Justice Latham’s statement, any “pretend law made in excess of power is not, and never has been, a law at all”.  Accordingly, unless the States can prove their authority to enact the various Local Government Acts, then they are invalid and, as Justice Latham said, “anybody in the country is entitled to disregard them.”

The Community Law Resource Association (CLRA) has prepared a press release detailing this issue for each and every State.  We would urge you to download a copy of the relevant press release for your State via the links below, or access them via the References CD.

Click this link to download the Victorian Press Release.

Click this link to download the NSW Press Release.

Click this link to download the Queensland Press Release.

Click this link to download the South Australian Press Release.

Click this link to download the West Australian Press Release.

 When you read through the relevant press release for your State, you will see that it raises some very clear, very powerful, very systematic points.  It starts by explaining the fact that all Parliaments require authority to make laws.  It then asks where your State Parliament obtains that authority from. The authority can only come from your State Constitution which, as we explained in the Constitution chapter, is subject to the Commonwealth Constitution.

It then goes on to state that Local Governments rely on the State Constitutions for their existence.  Each State unlawfully amended their State Constitutions, to provide for Local Governments, contrary to the requirement for a Referendum to be held before any changes were made, pursuant to Section 128 of the Commonwealth Constitution.

Accordingly, the press release asks for a Member of Parliament to ‘please explain’ where your State Parliament derived its purported authority from to alter the State Constitution with respect to Local Government, which is contrary to the requirements of the Commonwealth Constitution, and/or to enact laws (such as the Local Government Act) which are repugnant to the Commonwealth Constitution.

We have also prepared a simple cover letter that you can download or access via the References CD.  All you need to do is cut and paste your details, along with the details of your local MP, and attach a copy of the relevant press release to that cover letter and send it off to them and see what kind of response you receive.

Please note that, if you are unsure of the details of your local MP, you can look them up very quickly and easily via this link and use the search function at the top right.  Again, a copy of that link is available on the References CD.

We recommend that you keep a copy of any letters that you send out, as well as any response that you get, because the Community Law Resource Association is also currently looking to run a class action against the State of Victoria regarding this issue, and any correspondence can be used as evidence in that case. Please note that you do not need to actually live in Victoria to be a part of this class action and, once the Victorian one is successful, it will have ramifications for all other States as well.

If you would like to find out more about this class action, please be sure to visit the class action website and register your interest in being part of it.  We would also ask that you help us spread the word about this vital class action, as well as the various State press releases, to friends, family, work colleagues, etc. via e-mail and social media.  It’s always important to act collectively when challenging ‘the system’: in regards to this class action, it is absolutely imperative that we get as many people on board as possible.

Go back to Chapter 4 or move onto Chapter 6.