FOI – Head of Power

FOI23154 – FOI Decision Letter and Attachment A (complete letter)

Freedom of information request FOI23/154 – Decision letter
The purpose of this letter is to give you a decision about your request for access to documents under the Freedom of Information Act 1982 (the FOI Act) which you submitted to the Department of the Prime Minister and Cabinet (PMC) and which was transferred under s 16 to the Attorney-General’s Department (the department).


Your request


You made an FOI request to PMC on 7 March 2023 in the following terms

I seek the law made by the Parliament of the Commonwealth under the Constitution, binding on all the courts, judges and people of every State and every part of the Commonwealth for the valid creation of a title for the King to adopt in relation to Australia and its Territories.

I seek the document or instrument containing the enumerated head of power to create the Act known as the Royal Styles and Titles, made under the constitution, binding on all the courts, judges and people of every State and every part of the Commonwealth.

On 8 March 2023 the department accepted transfer of your request from PMC.

On 20 March 2023 the department acknowledged your request.

A decision for your request is due by 6 April 2023.


My decision


I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to freedom of information requests made to the department.

In making my decision, I have taken the following into account:

the terms of your request

advice provided to me by officers with responsibility for matters to which your request relates

the provisions of the FOI Act, and

the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the Guidelines).

Section 24A of the FOI Act relevantly provides that an agency or Minister may refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency is satisfied that the document:
is in the agency’s possession but cannot be found, or

does not exist.


When considering a decision to refuse access under section 24A of the FOI Act, the Guidelines relevantly
provide at paragraph 3.89 that an agency or minister should take comprehensive steps to locate documents, having regard to:

the subject matter of the documents

the current and past file management systems and the practice of destruction or removal of documents

the record management systems in place

the individuals within an agency or minister’s office who may be able to assist with the location of documents, and

the age of the documents.

To identify the documents for your request, I arranged for staff likely to be able to identify documents to undertake comprehensive searches of relevant departmental information holdings. In particular, a departmental staff member with responsibility for processing FOI requests interrogated the department’s records management system using search terms which were developed with reference to the information provided in the scope of your request. Despite these efforts, no relevant documents were identified.

Having regard to the above, I am satisfied that reasonable steps to locate the documents to which you have sought access were undertaken. I am also satisfied that the documents do not exist within the department’s records holdings. I have therefore decided to refuse access pursuant to section 24A of the FOI Act.

Posted by admin in Constitution
Australia – The Concealed Colony

Australia – The Concealed Colony

From live stream video 27th January 2023
From the book “Australia – The concealed colony”

A couple of pages Australia – The concealed colony (pdf)

Copy of Annexure 3 (perhaps send to your “representative”)
2 page letter Annexure 3 (pdf) 10.6.1999 by Robyn Webber, Director, Chamber Research Office, Parliament House, Canberra

Copy of Annexure 10
2 page letter Annexure 10 (pdf) by Adele Byrne, from the Office of the Australian Attorney General, ~ July 1997

Copy of Annexure 16
2 page letter Annexure16 (pdf) 6.7.1999 by Janet Power from the Office of the Australian Attorney General

This book has been hidden from the Australian people for many many years, now they have access to it once more.
From the book “The information in the book belongs to the Australian people”.
Copyright © 1999 Institute of Constitutional Education and Research PO Box 9112, Seaford Mail Delivery Centre, SEAFORD, VICTORIA AUSTRALIA 3198.

The full text of this book can be viewed here: https://archive.org/stream/AustraliaConcealedColony1/AustraliaConcealedColony1_djvu.txt

The COMPLETE book, scanned, saved as a pdf – FOR the People of Australia is available on the GAP Member pages.
Members are encouraged to share. Restricting it to the Members pages to limit the downloads!

**Rod will be sharing his letter he writes to the wo/man acting as a “public officer” to the Members area asap.

Posted by admin in Constitution
Welcome to the new website!

Welcome to the new website!

Well it was a bit of a challenge, however, we’ve settled in nicely to our new Australian owned, Australian based hosting.

Please be patient while the new website team sort out any niggles, broken links or missing downloads.
If you spot any website errors or problems please email gap@redbackgraphics.com.au.

We really appreciate your patience!

I’ll take this opportunity to wish everyone a very Merry Christmas, and a Great New Year!

Rod Culleton
Former Federal Senator for Western Australia (in exile)

 

Posted by GAP in General

FOI requesting the instrument used to create the Federal Court of Australia refused

FOI requesting the instrument used to create the Federal Court of Australia refused

Former Senator of the 45th Parliament, Rod Culleton made a freedom of information request, requesting the instrument, or otherwise information, that demonstrates that the Federal Court of Australia Act 1976 complied with section 58 of the Commonwealth Constitution, in becoming law:

  1. to establish the Federal Court of Australia;
  2. to establish the authority to issue writs in the name of the Federal Court of Australia, and
  3. to establish the role of the Chief Executive Officer for the Federal Court of Australia.

The officer authorised under section 23(1) of the Freedom of Information Act 1982 replied that he was satisfied that reasonable steps to locate the documents were undertaken. He also added that the documents cannot be found or do not exist within the department’s records holdings, and therefore refused access pursuant to section 24A of the FOI Act 1982.

Mr. Culleton said that the AEC and the Australian Government Solicitors recently threatened legal action against the Great Australian Party in the Federal Court of Australia, a jurisdiction declared to have no prerogative and/or judicial power linked to the Commonwealth of Australia Constitution Act.

Authorised by Ian Nelson for the Great Australian Party, 65 Cardinal Cct, Caboolture, 4510

Posted by GAP in Constitution
ADF decides not to overturn Port of Darwin China deal

ADF decides not to overturn Port of Darwin China deal

ADF decides not to overturn Port of Darwin China deal

Australia may NEVER get the Port of Darwin back from Beijing as bureaucrats find there is ‘no national security risk’ to the deal – despite China trying to tank the Aussie economy

Key facts:

  • Australian Defence Force (ADF) decides not to overturn controversial China port deal
  • Landbridge signed a $506million agreement to control the Port of Darwin
  • The 99-year lease has come under criticism as tensions dramatically sour
  • Relations between Canberra and Beijing have reached critical low point
  • ADF officials have deemed the port is not a ‘national security’ issue
  • Chinese companies control 2.4% of Commonwealth land

Bureaucrats in the Australian Defence Force have determined there is ‘no national security risk’ that would justify stripping a Chinese company of its 99-year lease to control the Port of Darwin – despite soaring hostilities between the Commonwealth and China.

Landbridge signed a controversial $506million agreement with the Northern Territory government back in 2015 to take control of the strategically important asset.

The surrender of a key port next to a major military base housing thousands of American marines caught then prime minister Malcolm Turnbull off guard and enraged US president Barack Obama whose administration said it was ‘blindsided’.

It has since come under intense scrutiny from military and economic analysts as diplomatic relations between Beijing and Canberra have dramatically soured.

Back in May, the Prime Minister quietly asked for an urgent review into the Chinese deal as national security experts warned it was a ‘strategic own goal’.

But Defence has now handed over their report to the National Security Committee of Cabinet finding that unpicking the agreement would not be wise.

Former Howard government minister and now chair of the international engagement committee of the Business Council of Australia, Warwick Smith, said the heads of Defence, Home Affairs, ASIO and ASIS, do not consider the Port of Darwin as a ‘high-priority issue’.

‘It was subject to Defence ­consideration at the time. They went through it in ­detail. They found a lease… It was a reasonably good return for what was a basically low level piece of port area,’ he told The Australian.

‘My view is that defence have probably come to the right conclusion. National security concerns have changed over the last five years, and I appreciate that. But there’s not a lot to be gained by picking apart a port lease like this when there are other ­investments taking place in our country.

‘It doesn’t gain on the security side. It unpicks a commercial ­arrangement that sends a negative signal. I don’t think it’s the wisest thing to do right now.’

At the time of the review, Michael Shoebridge, the director of the Australian Strategic Policy Institute’s defence program said he wondered whether operating the port is in the ‘company’s commercial interests’ amid ‘the strategic environment they find themselves’.

‘I think it’s obvious that if the Darwin port lease was being considered today, the result would not be to lease it to a Chinese-owned company for 99 years,’ he told the Sydney Morning Herald.

‘It seems a strategic own goal for one of the best parts of Darwin Harbour to be in the control of a Chinese-owned operator.’

China is now the largest foreign owner of land in Australia with Chinese companies in control of 2.4 per cent of Commonwealth land, according to the 2020 Register of Foreign Ownership.

Posted by GAP in Constitution
Constitution series: Covering Clause 2

Constitution series: Covering Clause 2

Constitution series: Covering Clause 2

Covering Clause 2

The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

NOTE: To point out a very interesting anomaly, it is alleged that the Parliament of the Commonwealth did not have authority or the power (ultra vires) to create the Royal Style and Titles Act 1973. Such an Act is inconsistent or incompatible with Covering Clause 2 of the Constitution Act and section 1 of the Commonwealth Constitution. No Parliament has any authority or the power to create any Law, Statute, Regulation or any other instrument of Law that is inconsistent or incompatible with the Constitution Act or section 1 of the Commonwealth Constitution which of course is part of the Constitution Act.

Royal Style and Titles Act 1973

WHEREAS, in accordance with the Royal Style and Tiles Act 1953, Her Majesty, by Proclamation dated 28th May, 1953, adopted, as the Royal Style and Titles to be used in relation to the Commonwealth of Australia and its Territories, the Style and Titles set forth in the Schedule to that Act:

AND WHEREAS the Government of Australia considers it desirable to propose to Her Majesty a change in the form of the Royal Style and Titles to be used in relation to Australia and its Territories:

NOTE: The words “Government of Australia” is inconsistent or incompatible with section 1 of the Commonwealth Constitution.

Section 1 Legislative power:

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 hereinafter called “The Parliament”, or “The Parliament of the Commonwealth”.

Royal Style and Titles Act 1973.

AND WHEREAS the proposed new Style and Titles, being the Style and Titles set forth in the Schedule to this Act, retains the common element referred to in the preamble to the Royal Style and Titles Act 1953:

Royal Style and Titles Act 1953.

AND WHEREAS the Style and Titles appertaining to the Crown at the time of the enactment of the Statute of Westminster, 1931 had been declared by His then Majesty King George V. in a Proclamation in pursuance of the Royal and Parliamentary Titles Act, 1927 of the United Kingdom, and were, in consequence of the establishment of the Republic of India, subsequently altered with the assent as well of the Parliaments of Canada, Australia, New Zealand and the Union of South Africa as of the Parliament of the United Kingdom:

Royal Style and Titles Act 1973

BE IT THEREFORE enacted by the Queen, the Senate and the House of Representatives of Australia, as follows:

1. This Act may be cited as the Royal Style and Titles Act 1973.

2.

(1) The assent of the Parliament is hereby given to the adoption by Her Majesty, for use in relation to Australia and its Territories, in lieu of the Style and Titles set forth in the Schedule to the Royal Style and Titles Act 1953, of the Style and Titles set forth in the Schedule to this Act.

(2) The Proclamation referred to in subsection (1) shall be published in the Gazette and shall have effect on the date upon which it is so published.

We need to keep in mind the words of Covering Clause 2

Covering Clause 2

The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.

Royal Style and Titles Act 1973

Schedule

Section 2

Royal Style and Titles

Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

In 1973 the Commonwealth Government created the Royal Style and Titles Act of 1973, which in turn creates the Queen of Australia.

Covering Clause 2

The Annotated Constitution written by Quick and Garran make the following comments; Page 320 and 323, (relevant part only).

HISTORICAL NOTE

The clause as originally drawn in the Sydney Convention, 1891 (which became the Constitution Act 1900), the words “in the sovereignty” was substituted for “Kings and Queens.” “This Act shall bind the Crown.”

The words “in the sovereignty” was substituted for “Kings and Queens.” point out the influence that Australia had in the creation of the Constitution Act.

The words “Sydney Convention of 1891” was one of the Constitutional Convention Debates and that the framers of the Commonwealth Constitution had all around the Country and used those Constitutional Convention Debates to formulate such Constitution.

The Annotated Constitution written by Quick and Garran make the following comments; Page 320 and 323, (relevant part only).

CROWN NOT BOUND UNLESS NAMED.

It is a recognized principle in the construction of Statute law that in any case where the Crown would be ousted of an existing right, it is not bound, affected, or reached unless named therein either expressly or by necessary implication.

The rights of the Crown are not barred by any Statute of Limitations, unless it is expressly named therein; and this rule extends to cases where the right of the Crown is merely nominal.

PREROGATIVES (Rights).

These are the residuary fractions and remnants of the sovereign power which, unimpaired by legislation and revolution, remain vested in the Crown. They are the products and survivals of the Common Law and are not the creatures of statutes. Statute law tends gradually to invade and diminish the domain of prerogative.

  1.  Section 1 of the Constitution, providing that the legislative power shall be vested in a Federal Parliament consisting of the Queen, the Senate, and the House of Representatives.
  2.  Section 59, restricting the period within which the Queen may disallow laws assented to by the Governor-General.
  3.  Section 62, creating an Executive Council to advise the Governor- General as the Queen’s Representative.
  4.  Section 74, limiting the right of appeal to the Queen in Council.

PREROGATIVES CONFIRMED BY THE CONSTITUTION.

Certain well-known and long-established powers of the Crown instead of being negatived are confirmed by the Constitution, such as:—

(1.) Section 5.—The Governor-General may convene, prorogue, and dissolve the Federal    Parliament. (The saga of Whitlam)

Prorogue.

  1. To postpone or defer.
  2. To discontinue a session of without dissolution.
  3. To suspend or discontinue a legislative session.

(2.) Section 62.—The Governor-General may choose and summon members of the Executive Council to advise him.

(3.) Section 64.—The Governor-General may appoint officers to administer such Departments of State as the Governor-General in Council may establish.

(4.) Section 68.—The Governor-General shall be the Commander-in- Chief of the naval and military forces of the Commonwealth.

No doubt, most or the whole, of these and other powers vested in the Governor-General will, in accordance with what have been elsewhere referred to as the “Understandings and Conventions of the Constitutions,” be exercised by the Queen’s Representative in a Constitutional manner, that is, on the advice of responsible Ministers.

Her Majesty’s Heirs and Successors.

The Annotated Constitution written by Quick and Garran make the following comments; Page 323 and 328, (relevant part only).

 

The Succession to the Crown was, after the revolution of 1688, settled by the Bill of Rights 1688.

Sovereignty of the United Kingdom.

SOVEREIGNTY

The relation of the Commonwealth to the Empire, and the relation of the Federal and State Governments of the Commonwealth to one another, can hardly be appreciated apart from a sound study of the principle of sovereignty.

Before attempting any definition of sovereignty, it is advisable to call attention to the necessity of avoiding confusion between four distinct uses of the word:—

  1. Legal sovereignty—as when we speak of the sovereignty of the British Parliament;
  2.  Political sovereignty—as when we speak of the sovereignty of the people;
  3.  Titular (supposed) sovereignty—as when we speak of the sovereignty of the Queen;
  4.  Delegated Sovereignty— as when we speak of the sovereignty of the British Parliaments delegated right of self-government on British colonies (Australia is one).
  1. LEGAL SOVEREIGNTY: Sovereignty, then, is an attribute, and the most essential attribute, of a State, that is, of an independent political community. It is defined as “original, absolute, unlimited, universal power over the individual subject and over all associations of subjects. The legal sovereign is that person, or determinate body of persons, which possesses, in a State, a power which in point of law is absolute and unlimited. Such a body is the British Parliament. Such a body are the electors of the Commonwealth of Australia again organized under the Constitutional. True political science seems to point to the conclusion that sovereignty is incapable of legal limitation, either from without or within. A sovereign body cannot be legally controlled by another body, for then that which controls would be sovereign.
  2. POLITICAL SOVEREIGNTY: Political sovereignty has been incidentally defined in our discussion of legal sovereignty. As a legal conception, a sovereign is one whose commands, whether just or unjust, wise or unwise, the courts will enforce. With political sovereignty the courts have nothing to do. They cannot recognize the “general will” of the political sovereign, but only the manifestation of that will as declared by the legal sovereign. That body is politically sovereign or supreme in a State the will of which is ultimately obeyed by the citizens of the State. As a matter of law, some jurists (One who has thorough knowledge of the law; esp., a judge or an eminent legal scholar) have contended that the Queen is the supreme administrator and supreme legislator, acting by and with the advice of ministers in matters of administration, and by and with the advice and consent of Parliament in matters of legislation. For good or for evil, the movement in favour of the Referendum—which finds a place in this Constitution as a means for the alteration of the organic law tends in this direction.
  3. TITULAR (supposed) SOVEREIGNTY: This term is used to designate the king, or queen, of the United Kingdom; often also in the phrase ‘Our Sovereign Lord the King,’ or ‘Our Sovereign Lady the Queen,’ in Acts of Parliament and proclamations.
  4. DELEGATED SOVEREIGNTY: In all the constitutional Acts passed by the British Parliament conferring the right of self-government on British colonies, it is expressed or implied that the sovereignty is vested in the Queen. This form of expression is in accordance with traditional theory and usage and it has been continued as a matter of courtesy, notwithstanding (Despite) the fact that the form is at variance with the reality and the substance as elsewhere pointed out, the Queen shares with the Houses of the British Parliament in the sovereignty of the British Empire. Within the limits of their constitutional Acts and charters, such governors and parliaments may exercise all the ordinary authority of a sovereign, in the same way as the Queen in the British Parliament, subject only to the same moral checks and restraints. The constitutional Acts of the colonies of Great Britain are illustrations of this delegation of sovereign power. Most of these colonies possess Statutory Constitutions, conferring on their respective legislature, together with the Queen, represented by a governor, authority to legislate for the peace, order, and welfare of the people within their respective territories. The Constitution of the Australian Commonwealth is an even more notable instance of the same process. But colonies, dominions, or commonwealths, having such a system of government, substantially free and practically independent, are still subject to the original sovereign body, the Queen in the British Parliament. That power, though dormant, is not extinguished or abandoned by the delegation.

In Australia the people are sovereign over and above all parliaments, but not either the Queen or the Parliament of the United Kingdom.

Authorised by Ian Nelson for the Great Australian Party, 65 Cardinal Cct, Caboolture, 4510

Posted by GAP in Constitution
Constitution series: Covering Clause 3

Constitution series: Covering Clause 3

Constitution series: Covering Clause 3

Proclamation of Commonwealth.

  1. It shall be lawful for the Queen, with the advice of the Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being later than one year after the passing of this Act, the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the people of Western Australia have agreed thereto, of Western Australia, shall be united in a Federal Commonwealth under the name of the Commonwealth of Australia. But the Queen may, at any time after the Proclamation, appoint a Governor-General for the Commonwealth.

The Annotated Constitution written by Quick and Garran make the following comments; Page 328, (relevant part only).

HISTORICAL NOTE.- Clause 3 of the Commonwealth Bill of 1891 (UK Parliament) (which became the Constitution Act 1900) was as follows:-

“It shall be lawful for the Queen, by and with the advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being later than six months after the passing of this Act, the colonies shall be united in one Federal Commonwealth under the Constitution hereby established, and under the name of the Commonwealth of Australia; and on and after that day the said colonies shall be united in one Federal Commonwealth under that name.”

At the Adelaide Session (Constitutional Convention Debates), the clause was introduced in the same form, except that it was provided that the colonies “shall be united in a Federal Constitution under the name of the Commonwealth of Australia, and on and after that day the Commonwealth shall be established under that name.”

The Queen may, at any time after the making of the proclamation, appoint a Governor-General for the Commonwealth.

The words “of the Commonwealth Bill” point out the influence that Australia had in the creation of the Constitution Act.

The Annotated Constitution written by Quick and Garran make the following comments; Page 328, (relevant part only).

This was agreed to. Drafting amendments were made after the fourth report. In the Imperial Parliament, the names of the federating colonies were filled in; with the provision for including Western Australia in the Proclamation if the Queen were satisfied that the people of Western Australia had agreed to the Constitution.”

Privy Council.

This body was originally one of the most important councils of the Crown. It acquired the last-named designation during the reign of Henry VI. (1422–1461). It was a council of confidential advisers, who were in constant attendance upon the king and assisted him in the decision of all questions of public policy and in the administration of the business of the kingdom. It consisted of nobles and other eminent persons in whom the king had confidence.

Lord Hale referring to the fact that the members of that council, being peers, in consultation with the king, they prepared the business. It was foreshadowed in the reign of Henry III, and assumed a definite organization during the long period covered by the successive reigns of the three Edwards. It was one of the three groups into which the Great Council was originally divided and which afterwards became fused into the House of Lords.

These groups were—

  1. The Lords Spiritual;
  2. the Lords Temporal; and
  3. the official and bureaucratic element immediately associated with the king in the government of the realm.

The Cabinet has been defined as the political committee of the Privy Council,

especially organized for the purpose of advising the Crown, directing all public departments, and deciding all important questions of administration, subject only to the approval of the House of Commons.

In Colonial causes the Privy Council had, from time immemorial, both original and appellate (Appeal) jurisdiction.

And to the same supreme tribunal there is an appeal in the last resort from the sentence of every court of justice throughout the colonies and dependencies of the realm. Practically, however, all the judicial authority of the Privy Council is now exercised by a committee of privy councillors, called the Judicial Committee of the Privy Council, who hear the allegations and proofs, and make their report to Her Majesty in council, by whom the judgment is finally given.

The statutory jurisdiction of the Privy Council was first regulated in 1833 by the Act of William IV, passed for the better administration of justice in the judicial branch of the Council.

Under that law the Judicial Committee of the Council was definitely constituted.

The Erection of the Commonwealth.

Three distinct stages in the erection of the Commonwealth are contemplated by this clause:—

  1. The passing of the Imperial Act,
  2. the issue of the Queen’s proclamation appointing a day within one year after the passing of the Act,
  3. the day when the people of the concurring colonies are united. These events and successive stages are not chronologically narrated in the clause. It will be conducive to clearness to consider them in the order of time in which they occur.

The Passing of this Act.

Before the Act, every Act in which no particular time of commencement was specified, operated and took effect from the first day of that session of Parliament in which it was passed. An Act which was to take effect from and after the passing of the Act operated by legal relation from the first day of the session. But now, where the commencement of an Act is not provided for in the Act, the date endorsed on the Act, stating when it has passed and received the Royal assent, is the date of its commencement. The Royal assent may be given during the course of the session, in which the two Houses of Parliament concur in it, or at the end of the session. The practice is to endorse on the first page of the Act, immediately after the introductory title, the date of the Royal assent.The Royal assent to an Imperial Act is given by the Queen in person or by commission; if by commission it is only given to such bills as may be specified in the schedule thereto.This Act received the Royal assent on 9th July, 1900, which day is therefore the date of “the passing of this Act.” But, although that date marks the commencement of the Act, the Commonwealth is not established, nor does the Constitution take effect, until the Queen has made a proclamation under the Act and the day fixed by that proclamation for the establishment of the Commonwealth has arrived. The only immediate consequences of the passing of the Act were:

  1. That the Queen in Council was empowered to issue a proclamation appointing a day, not later than one year after the passing of the Act for the establishment of the Commonwealth “Proclamation”), and
  2. that the Parliaments of the several colonies might proceed to pass preliminary electoral laws and to make arrangements for the election of the first Federal Parliament.

Proclamation.

A royal proclamation is a formal announcement of an executive Act; such as a summons to the dissolution of Parliament; a declaration of peace or war; a warning to the people to keep the law, or a notification of enforcement of the provisions of a statute, the operation of which is left to the discretion of the Queen in Council. The object of a royal proclamation is only to make known the existing law or declare its enforcement; it can neither make, nor unmake the law. A proclamation is a resolution of the Queen in Council, which, as we have already seen, means the Cabinet.

The proclamation referred to in this clause is one which it is in the discretion of the Queen, acting on constitutional advice, to issue subject only to the condition that the date fixed therein must be not later than one year after the passing of the Act.

A Day therein Appointed.

Where an Imperial Act of Parliament is expressed to come into operation on a particular day, it is construed as coming into operation immediately on the expiration of the previous day. Thus if the day appointed is the 1st January, the day begins at midnight, marking the end of 31st December. This principle will apply to the day appointed in the Queen’s proclamation. An expression of time in an Imperial Act, in the case of Great Britain, means Greenwich Mean Time. Definition of Time Act 1880, Interpretation Act 1889. On the day appointed by the proclamation, the following events are declared to happen,

  1. The people of the colonies are united.
  2. The Commonwealth is established.
  3. The Constitution takes effect.
  4. The electoral and other procedure laws passed by the Parliaments of the federating colonies between “the passing of the Act” and “the day appointed” come into operation.

The People shall be United.

The formative words in this clause are more forcible, striking, and significant than those of the corresponding parts of the Constitutions of the United States and of Canada; they indicate the fundamental principle of the whole plan of government, which is neither a loose confederacy nor a complete unification, but a union of the people considered as citizens of various communities whose individuality remains unimpaired, except to the extent to which they make transfers to the Commonwealth. In the body of the Constitution it is nowhere stated that the people of the States are or shall be united.

The individual human units, the vital forces, the population of the provinces, are not even remotely alluded to.

The haziness of one and the deficiency of the other Constitution have not been allowed to damage the design of the Constitution of the Commonwealth. The union of the people of the colonies is doubly asserted and assured; first in the preamble, where it is recited that “the people have agreed to unite,” and secondly in this clause, in which it is forcefully stated with mandatory force that on the day appointed they “shall be united.

Western Australia.

The condition necessary for the establishment of Western Australia as an Original State that the Queen should be “satisfied that the people of Western Australia have agreed thereto” was fulfilled by the affirmative vote in that colony on the Constitution, followed by addresses to the Queen passed by both Houses of the West Australian Parliament.

In a Federal Commonwealth.

The word “federal” occurs fifteen times in the Act, exclusive of references to the Federal Council of Australasia Act, 1885:

  1. Federal Commonwealth, Preamble and Clause 3.
  2. Federal Parliament, sec. 1.
  3. Federal Executive Council, secs. 62, 63, 64.
  4. Federal Supreme Court, sec. 71.
  5. Federal Courts, sec. 71.
  6. Federal Court, secs. 73 ii.; 77 i. and ii.
  7. Federal Jurisdiction, secs. 71, 73 ii., 77 iii., and 79.

The Federal idea, therefore, encompasses and largely dominates the structure of the newly-created community, its parliamentary executive and judiciary departments.

“Federal” generally means “having the attributes of a Federation.” By usage, however, the term Federal has acquired several distinct and separate meanings, and is capable of as many different applications. In this Act, for example, the term Federal is used first in the preamble, and next in clause 3, considered as a political community or state; in various sections of the Constitution it is employed as descriptive of the organs of the central government. This use, in an Act of Parliament, of one term in reference to two conceptions so entirely different as state and government, is illustrative of the evolution of ideas associated with Federalism. In the history of Federation the word seems to have passed through several distinct stages or phases, each characterized by a peculiar use and meaning.

These meanings may be here roughly generalized as a preliminary to a separate analysis:

  1.  As descriptive of a union of States, linked together in one political system.
  2.  As descriptive of a dual system of government, central and provincial.

As descriptive of the central governing organs in such a dual system of government.

The first, and oldest, of these meanings directs attention definitely to the preservation of the identity of the States; the second asserts that the duality is a matter of government, not of sovereignty; whilst the third asserts nothing, but is merely a convenient form of terminology.

A Union of States.

The primary and fundamental meaning of a federation is its capacity and intention to link together a number of co-equal societies or States, so as to form one common political system and to regulate and co-ordinate their relations to one another; in other words a Federation is a union of States.

A Dual System of Government.

In recent years it has been argued that the word “federal” is inappropriately and roughly used when applied to a State or community; that there is no such thing as a federal State; that if there is a State at all it must be a national State; that any political union short of the principal attribute of statehood and nationhood, sovereignty,

Central Government of a Dual System.

The term federal” is often used as descriptive of the organs of the central and general government, such as the Federal Parliament, the Federal Executive, and the Federal Supreme Court.

Federal Structure of the Commonwealth.

The Commonwealth as a political society has been created by the union of the States and the people thereof. That the States are united is proved by the words in clause 6, which provide that the States are “parts of the Commonwealth;” that they are welded into the very structure and essence of the Commonwealth; that they are inseparable from it and as enduring and indestructible as the Commonwealth itself; forming the support of the entire constitutional fabric.

Covering Clause 6.

Definitions.

“The Commonwealth” shall mean the Commonwealth of Australia as established under this Act.

“The States” shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State.” Original States” shall mean such States as are parts of the Commonwealth at its establishment.

“The Commonwealth, however, is not constituted merely by a union of States; it is something more than that; it is also a union of people.”

State Rights—Federal.

The sections which guarantee equal representation in the Senate and a minimum representation in the House of Representatives; which enable the Governors of States to issue writs for the election of Senators and to certify their election to the Governor-General; which require the Governor of a State concerned to be notified of vacancies in the Senate; State Constitutions except so far as they are inconsistent with the Constitution of the Commonwealth and its laws; which continue the power of State Parliaments except to the extent to which it has been withdrawn from them or vested in the Commonwealth; which continue.

State laws in force until provisions inconsistent therewith are legally made by the Federal Parliament; which preserve to each State the right to have direct communication with the Queen on all State questions; are examples of State rights secured by provisions of a Federal character.

The Constitution is National so far as it makes the laws of the Commonwealth binding on the people, Courts and Judges of every State; so far as the High Court has jurisdiction (sec. 73) to hear and determine appeals from State courts on questions of State laws; so far as the High Court has original jurisdiction (sec. 75) in certain classes of matters; so far as the Parliament has power to make laws (sec. 76) conferring original jurisdiction on the High Court in certain other classes of matters; so far as the Federal Parliament has power (sec. 77) to nationalize (take over) State courts by investing them with Federal jurisdiction.

Federalism in the Judicial System.

The Constitution is federal so far as it preserves the operation of State laws, not inconsistent with Commonwealth laws; so far as the State courts have exclusively original and primary jurisdiction to entertain matters in which State laws are involved; so far as it provides that the trial, on indictment, of an offence against any law of the Commonwealth shall be held in the State where the offence was committed (sec. 80).

Powers of the Federal Parliament.

It is in the distribution of legislative powers between the Federal Parliament and the State Parliaments that the fundamentally federal basis of the Constitution is most apparent; yet even here there is a distinct predominance of the national element. Looking down the sub-sections of sec. 51, we find that in many of them the principle of duality is expressly recognized, and the exclusive domestic jurisdiction of the States expressly reserved. For instance, the trade and commerce power is confined to inter-State and foreign trade and commerce, and it is hedged in (Chap. IV.) with a number of small restrictions to prevent injustice or discrimination as between States. The federal power of imposing taxation and granting bounties is similarly hedged about with conditions for the protection of the States. In sub-sec. x., the power over fisheries is confined to waters beyond territorial limits—the territorial rights of the States being thus reserved. In sub-secs. xiii. and xiv., the powers as to Banking and Insurance also contain a reservation of State rights.

In sub-sec. xxxv., power to deal with conciliation and arbitration is only given in the case of inter-State industrial disputes, and so on.

In all these cases, the duality of interest is recognized in the very gift of the power to the Federal Parliament, and the distribution of power is thus essentially federal. But in most of the subsections this nice analysis is not found.

Powers of the Federal Executive.

In other matters the original jurisdiction of the State courts is exclusive. The appellate jurisdiction of the High Court, on the other hand, is completely national and is in fact the most national element in the whole Constitution. It extends, subject only to partial limitation by the Federal Parliament to cases of every description decided by the Supreme Courts of the States, whether of federal concern or not. The High Court is, in fact, not a federal court of appeal, but a national court of appeal.

Composite Character of the Constitution.

It thus appears that even according to the more modern meaning of the word “federal” which recognizes the national as well as the provincial elements of federalism, the Constitution may be described as partly federal and partly national. That is to say, it contains not only those national elements which relate to a pure Federation, but also some further national elements which relate to a unification. This is especially the case with regard to the wide extent of some of its legislative powers, and with regard to the unlimited appellate jurisdiction of the High Court.

Credit: (CLRA) Community Law Resource Association

Authorised by Ian Nelson for the Great Australian Party, 65 Cardinal Cct, Caboolture, 4510

Posted by GAP in Constitution

Former Senator Rod Culleton charge of assault – Withdrawn

Former Senator Rod Culleton charged with assault

Kojonup Police (WA) Constable Matt Johnson received a complaint from the Adelaide/Bendigo Bank agents, Mr. Terrance Kerr, known as the TAB man, claiming the former Senator, Rod Culleton assault him during the attempted theft of a farmers land almost three (3) months ago.

Update: The assault charge was withdrawn, just before very powerful evidence was to be presented by Rodney.

Terrence Kerr of Baycorp is the bailiff arguing with Culleton in the video above.

As a result, Rod Culleton has been charged with assault for defending the farmers property from the corrupt bankers, the bailiff and their accomplices, the WA Kojonup Police.

It’s a seven (7) year maximum gaol sentence for assault, and we all know this is purely about disqualifying Culleton from running in the next federal election under s44(ii) constitution.

“Disqualification; any person who; …for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer…”

Culleton fought off the bankers and the police for the farmer to remain on the property, where he continues to be in full possession of the farm today. The farmer, Mr. Wayne Manolini even harvested a successful cereal crop estimated to be worth over $800,000 unfettered.

Rod Culleton briefed his supporters today in a Facebook Live.

Posted by GAP in Legal

Crimes against humanity

Crimes against humanity

Definition of crimes against humanity

  1. ‘Crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
  2. Murder;
  3. Extermination;
  4. Enslavement;
  5. Deportation or forcible transfer of population;
  6. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  7. Torture;
  8. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
  9. Persecution against any identifiable group or collectivity on political, medical, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible;
  10. Enforced disappearance of persons;
  11. The crime of apartheid;
  12. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
  13. For the purpose of paragraph 1:
  14. ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack;

Elements of crimes against humanity

Crimes against humanity do not need to be linked to armed conflict and can also occur in peacetime, similar to the crime of genocide. The definition of crimes against humanity contains the following main elements:

  1. A physical element, which includes the commission of “any of the following acts”:
  2. Murder;
  3. Extermination;
  4. Enslavement;
  5. Deportation or forcible transfer of population;
  6. Imprisonment;
  7. Torture;
  8. Grave forms of sexual violence;
  9. Persecution;
  10. Enforced disappearance of persons;
  11. The crime of apartheid;
  12. Other inhumane acts.
  13. A contextual element: “when committed as part of a widespread or systematic attack directed against any civilian population”; and
  14. A mental element: “with knowledge of the attack”
Posted by GAP in Covid, Legal

Over one thousand scientific studies questioning the safety of COVID-19 vaccines

Over one thousand scientific studies questioning the safety of COVID-19 vaccines

Posted by GAP in Covid