Legal Professional Privelige - State Premier's?

[Danman132]

Does anyone know if Legal Professional Privelige extends to State Premier's in Australia when the legal advice provided to them is in relation to a public matter?

Can a Freedom of Information request for legal advice provided to a Premier by their lawyers be declined on the basis of Legal Professional Privelige?

 

[Docupedia]

Yes.

 

[Danman132]

Yes.

Can you elaborate? I thought states were exempt from this privelige?

 

[Docupedia]

On what basis do you think that? There are few exceptions to LPP when it is validly in place.

This if from the Federal perspective, but the principles still apply: Legal briefing No. 87 | AGS

 

[TrueBlue_Oz]

You can't have common law immunity when the Constitution itself is one law and the basis of every other law in this country.
The very comment "substantive law" actually divides law when there is only one law that Parliaments and corporations have to deal with.

The only privilege that i know exists is within Federal Parliament when it is sitting in a constitutional matter involving a politician etc.

No statute can overthrow or override the will of the people. S80 of the Judiciary act 1903 Cth. "Common law to govern".

"All enacted laws must be consistent with the constitution", s15 Acts Interpretation Act 1901 Cth.

The words “under the Constitution” are words of limitation and qualification. Not all enactments purporting to be laws made by the Parliament are binding; A law in excess of the authority conferred by the Constitution is no law; it is wholly void and inoperative; it confers no rights, it imposes no duties; it affords no protection.
Page 346 Quick and Garren Annotated Constitution

There is also the question of S.106, S108 & S.109 of our Constitution of the Australian Commonwealth 1900 UK that relate to the states compliance to federal jurisdiction.
These are just copies of what is in legal documents already. which includes our Constitution and is not advice from me.

 

[Docupedia]

You are incorrect.

The Commonwealth Constitution (I draw the distinction, because there are also State Constitutions - specifically acknowledged at section 106 of the Constitution) is not the “basis of every other law in this country”. Most of the states/colonies existed first, which is why the Commonwealth only has the powers ceded to it by the Constitution or expressly by the States. Per the preamble to the Constitution:

“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, and under the Constitution hereby established:”

Sections 51 and 52 of the Constitution specifically limit what the Commonwealth Parliament can make laws with respect to. Matters falling outside of these areas are within the powers of the individual states – for example health and education.

This is further contemplated in sections 107: 'Saving of Power of State Parliaments' and 108: 'Saving of State Laws'. These sections provide:

s107: "Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be."

s108: "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."

Section 109 talks about inconsistency between State and Commonwealth laws, but this must be read subject to section 51 which specifically lists what areas the Commonwealth Parliament can legislate about. This is consistent with the underlined parts in the above sections 107 and 108.

If still in doubt, see section 118:
"Recognition of laws etc. of States
Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

The rest of your post falls away accordingly.

 

[TrueBlue_Oz]

Maybe you read what was mentioned wrong.

I stated the those sections and documents because they were accepted by the people and meet constitutional standards.
When the Federal Constitution was accepted by the majority of people in the majority of states, it became law,hence 109.
All states constitutions and laws must comply with the Federal Constitution. There is no ifs or buts about that.
There are claims that all laws since before 1973 are invalid due to the changes made to the royal, title and styles act. Also two High Court Of Australia Chief Justices have claimed we are not operating under proper & valid jurisdiction. Hence the question from my original post.

IN other words, parliament needs the legal capability to make laws to begin with, it can no longer do that since kevin rudd closed the very court that verified legislation to begin with.
Law can not be valid without the Royal Identifier and proper procedure to valid it.

The only Constitution that counts and is lawful is the Constitution that sits within the British Parliament.

It is also a known fact that both political parties have changed laws without permission or consent and if we are not siting under proper constitutional laws. then the body we call government is therefore invalid.
Even though the courts have given the people of the commonwealth legal right to ignore invalid law, law of the states must also comply with the federal constitution because those states held a referendum on it to begin with.
If the states did not want the constitution, they would not have held a referendum to begin with.

It is claimed we are not only under British law, though also imperial laws. Though our constitution is based on common law.
For if it is not within the constitution or meet constitutional standards, it can not lawfully or legally exist.

Which brings me to these.

“If either the Commonwealth Parliament or a State Parliament attempts to make a law which is not within its powers, the attempt fails, because the alleged law is unauthorized and is not a law at all”.
“The courts have declared a statute invalid, sometimes lead to a misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it”.

If it is beyond power, it is void from the beginning.

If it is beyond power, it is void ab initio HCA 1942 (65 CLR 373 at 408).
Chief Justice Latham – High Court of Australia – Uniform Tax Case.

Further backed by Justice Gageler in the matter of State of NSW v Kable (5 June 2013) or more commonly referred to as "The Kable case."

https://www.facebook.com/greataustralianparty/photos/a.796820227190817/869202519952587

"Governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them. 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 1.12Led 581

 

[Docupedia]

All states constitutions and laws must comply with the Federal Constitution. There is no ifs or buts about that.

Totally incorrect as a blanket statement. It is much more nuanced than that. Your arguments are facile and misleading.

You fail to understand the separation of State and Federal powers, which I've alluded to in my previous post. Certain powers are ceded to the Commonwealth, either within the Commonwealth Constitution or by enactment from the States. An example of the former is subsection 51(ii) of the Constitution, given the Federal Parliament the power to make laws with respect to "taxation; but so as not to discriminate between States or parts of States". An example of the latter is the States passing power to legislate on matters of credit, leading to the National Consumer Credit Protection Act 2009.

The laws of the Australian States are not invalid per se. A State law which is inconsistent with a Commonwealth law in an area in which the Commonwealth has been given a Head of Power is invalid to the extent that it is inconsistent with the Commonwealth law (per s109).

But I digress. Going back to your original comment: "...the Constitution itself is one law and the basis of every other law in this country". No, it's clearly not. I've been hearing this pseudo-junk for 30 years and it's the same cherry picked strawman arguments over and over. The laws of Australia are by and large valid, State and Commonwealth. Convince yourself otherwise at your own peril.

 

[Tim W]

Don't waste your effort Doc.
These are not people to whom facts and rationality are in play.

 

[TrueBlue_Oz]

Maybe you read what was mentioned wrong.

I stated the those sections and documents because they were accepted by the people and meet constitutional standards.
When the Federal Constitution was accepted by the majority of people in the majority of states, it became law,hence 109.
All states constitutions and laws must comply with the Federal Constitution. There is no ifs or buts about that.
There are claims that all laws since before 1973 are invalid due to the changes made to the royal, title and styles act. Also two High Court Of Australia Chief Justices have claimed we are not operating under proper & valid jurisdiction. Hence the question from my original post.

IN other words, parliament needs the legal capability to make laws to begin with, it can no longer do that since kevin rudd closed the very court that verified legislation to begin with.
Law can not be valid without the Royal Identifier and proper procedure to valid it.

The only Constitution that counts and is lawful is the Constitution that sits within the British Parliament.

It is also a known fact that both political parties have changed laws without permission or consent and if we are not siting under proper constitutional laws. then the body we call government is therefore invalid.
Even though the courts have given the people of the commonwealth legal right to ignore invalid law, law of the states must also comply with the federal constitution because those states held a referendum on it to begin with.
If the states did not want the constitution, they would not have held a referendum to begin with.

It is claimed we are not only under British law, though also imperial laws. Though our constitution is based on common law.
For if it is not within the constitution or meet constitutional standards, it can not lawfully or legally exist.

Which brings me to these.

“If either the Commonwealth Parliament or a State Parliament attempts to make a law which is not within its powers, the attempt fails, because the alleged law is unauthorized and is not a law at all”.
“The courts have declared a statute invalid, sometimes lead to a misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it”.

If it is beyond power, it is void from the beginning.

If it is beyond power, it is void ab initio HCA 1942 (65 CLR 373 at 408).
Chief Justice Latham – High Court of Australia – Uniform Tax Case.

Further backed by Justice Gageler in the matter of State of NSW v Kable (5 June 2013) or more commonly referred to as "The Kable case."

https://www.facebook.com/greataustralianparty/photos/a.796820227190817/869202519952587

"Governments are but trustees acting under derived authority and have no power to delegate what is not delegated to them. 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 1.12Led 581

Parliamentary privilege can only be extended to cases involving federal Parliament. since the states have to comply with the Federal Constitution and since federal laws override any state laws and statutes where laws had not already been made. then states can not have parliamentary privilege unless it is in their own states Constitution.

Sorry, though I am not wrong as it has been written into legal documents and when current legislation is in doubt, old law always overrides the legislative law being questioned.