Homework Question - Thoughts on Australian Constitution

Discussion in 'Australian Law Students Forum' started by john welch, 10 January 2017.

  1. john welch

    john welch Active Member

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    Hullo,

    Matters provided in the Australian Constitution such as appeals to Privy Council require majority of all electors with majority in States for altering the Constitution. s128. Removing the highest appellate judicial body is surely more than a "matter provided" in s 51 xxxvi as the body becomes then un-provided, non-existent. Removing the Senate House by MPs vote alone is, for example, going beyond a matter provided.

    The protection of s 128 allows Acts to limit but not impair the Queen in Council s 74. So the Australia Acts 1986 may be void ab initio. Thus s 74 stands today in the Constitution as it has not been legally deleted.

    If one part of the democratic system can be crudely cut away, is Duterte in the Philippines so wrong to have kill-squads?
     
  2. Iamthelaw

    Iamthelaw Well-Known Member

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    Your question makes absolutely no sense.
     
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  3. john welch

    john welch Active Member

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    Sorry. Do you understand the term "unconstitutional"? My title had the word "entrenched" but the wise man removed that. What do you make sense of "entrenched"?
     
  4. Iamthelaw

    Iamthelaw Well-Known Member

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    Yes, I am aware of the term 'unconstitutional' as well as 'entrenched' but in light of that I still don't understand what you're asking.
     
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  5. john welch

    john welch Active Member

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    The entrenched matter of appeal to Queen in Council was abolished without referendum. The reason for s128, protecting against casual alteration, was ignored in 1986. So I question that and ask for opinions.
     
  6. Iamthelaw

    Iamthelaw Well-Known Member

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  7. john welch

    john welch Active Member

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    Yes, that's the mechanical reality. Knowing my question, could you go through my posts again? As a judge and not as a Vladimir Putin.
     
  8. Iamthelaw

    Iamthelaw Well-Known Member

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    I've pointed you in the right direction. You also need to read more about the enactment of the Australia Act. This would form a key part of the syllabus in any University.

    You realize 'giving' you the answer can amount to academic misconduct don't you? I assume you're studying Law. Academic misconduct can hinder your chances of being admitted to the profession.
     
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  9. john welch

    john welch Active Member

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    As I'm 68 this is not home-work. It's title is "Entrenched Constitution" and was altered without my consent. Were the 1968 Australia Acts unlawful and void ab initio ? This has implications as a precedent for unlawfully abolishing the monarch without referendum and so altering it without consent.

    Thank you for the ref, Iamthelaw, but it doesn't cover this question of altering the Constit. by inconsistent legislation. It merely says why the alteration was suitable , that is : populism .

    "In 1920 a unanimous High Court held that ‘[w]here a thing is declared illegal, whatever may be the object of the prohibition, the thing declared illegal is of no force or validity, and everything dependent on that thing…shares the fate of the thing prohibited’.

    That holding invoked the ‘void ab initio’ doctrine in relation to unconstitutional legislation and the acts of government predicated on such legislation. In that context, the void ab initio doctrine holds that: [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. Naturally he will feel safer if he has a decision of a court in his favour –– but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it –– and thereafter invalid. If it is beyond power it is invalid ab initio. The void ab initio doctrine sets "_ W Bateman 1722 SYDNEY LAW REVIEW VOL 34:721
    R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23, 29–30, 32 (Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ).
     
  10. Iamthelaw

    Iamthelaw Well-Known Member

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    I think your questioning is along the lines of Kirby's dissent in Sue v Hill. A full explanation would almost require teaching you Constitutional law from A-Z - For which I don't have the time. No doubt you'll recall that the 1999 referendum failed.

    The Australia Act 1986 are not void as they didn't abolish the Monarchy. Australia is still technically a 'constitutional monarchy' - Legislation can't be enacted unless it receives royal assent, Ministers are still technically viewed as servants of the Crown, the Gov Gen is the Queen's representative.
     
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