The Constitution

The preamble and clause 5

There are some very important parts to note before you even get to the Commonwealth Constitution itself at part 9.

The preamble 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.

Clause 5 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.

Key sections that protect you

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. Ask for a copy of their certificate and/or oath of office.

Section 92 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 dictates that any colony that becomes a State under the Constitution — which is all of them — is subject to the Constitution.

Section 109 states 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.

Sections 115, 117 and 118

Section 115 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 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.

Section 118 states that full faith and credit will be given to the laws, acts and public records, and the judicial proceedings of every State. Remember this when someone tries to tell you that a case decided in one State doesn't apply in yours.

State Constitutions and the Victoria problem

Each State also has its own Constitution. If you live in Victoria, you actually have two! 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 "first in time, best in law" — therefore, the 1855 Constitution takes precedence over the 1975 one. Section 106 of the Commonwealth Constitution clearly states "The constitution of each state..." — that means there can only be ONE Constitution for each State.

So, if you ever have a court case involving the State of Victoria and they refer to the 1975 Constitution, the above will be your response.

What about the Australia Act?

People often say "The Court says none of this applies since the introduction of the Australia Act in 1986." There are fundamental issues with the Australia Act:

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, allowing the States to put aside 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 it failed.