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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    Kirby appears to make no mention of 1968 Act or the entrenched constitution. Again, Sue v Hill assumes the Act is lawful using customary usage as a Constitution-breaker. HM was never crowned as Australia's separate monarch.
    Deeming legislation likewise breaks the Constitution when the financial burden becomes high , in cynical unlawfullness.

    Inconsistency was defined in ex parte McLean. Abolishing the Privy Council is severely impairing and altering matters in the Constitution. Abolishing the monarchy is not the definition of 1986 Act being void , I mentioned it as a possible future , damaging result of that. precedent . If 1986 is valid then s74 would not be silently staring at the Houses and High Court . It's the Law but what does Putin care about that.
     
  2. Iamthelaw

    Iamthelaw Well-Known Member

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    Sorry, I meant to say Kirby's dissent in Marquet. From memory (it's been a long time since I looked at the decision) in his dissent he mounts an argument that the Australia Act (or part thereof) was invalid.

    Again, you're misunderstanding the basics of Australian constitutionalism - You're also moving from various topics and issues, using pseudo-legal language and bringing in issues that have no relevance to your original question.

    It kind of reminds me of 'sovereign citizens' videos you see floating around where they say that all statute law is invalid and that they only 'answer to common law', your birth certificate is a bond, or that the Supreme Court holds no power as it's a registered corporation etc.

    Honestly, I'd recommend that you purchase the Hanks book on Constitutional law and read it, thoroughly.
     
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  3. john welch

    john welch Active Member

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    I move to the issues which you raise , off the point. Kirby in Marquet is off-point . " No doubt you'll recall that the 1999 referendum failed " is off-point.

    My repeated topic is s74 entrenched by s128 about s54 xxxvi. You repeat that your knowledge is above my ignorance . I then appreciate an accurate use of dicta or brief reason for s74 being in existence and not existing in law.
     
  4. Iamthelaw

    Iamthelaw Well-Known Member

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    1 - The majority decision in Marquet held that s51xxxviii of the Constitution was the basis for enacting the Australia Acts.

    2 - I concede that Marquet is not directly related to your question (or at least what I think your question is) - However it is somewhat related - Kirby at around 200 onward is the relevant paragraph of the decision. He said referendum was a prerequisite to any fundamental change to the Constitution, such as those involved in enacting the Australia Acts.

    There is other commentary around these paragraphs from the man himself. His views about the validity of the Australia Acts weren't accepted by many at all and even he himself later concedes that he'd changed his mind about the Australia Acts - Shaw v Minister for Immigration and Multicultural Affairs. In fact I recall he goes into detail with the Acts being inconsistent with s106 of the Constitution.

    3 - Your incorrect use of latin (such as dicta) along with words such as 'entrenched', coupled with the references to Putin, killing fields in the Philippines and varying aspects of the Constitution which are off point is confusing to say the least.

    4 - My comment about the 99 referendum was not 'off-point'. You stated (incorrectly) that the monarchy had been abolished - It hasn't - Hence why I drew your attention to the referendum, notwithstanding the my comments regarding Australia being a constitutional monarchy.

    5 - You've made several references to the Australia Acts not being lawful? I'm not aware of any solid basis for this assertion.

    6 - You're talking about a section (s74) that was enacted by the imperial parliaments. It provided two possibilities of appeals from the HC to the PC:

    1) There could be an appeal granted if the HC issued a certificate that it was appropriate for the PC to determine an inter se matter - meaning a matter that was to do with the relations between the Cth and one or more States;

    2) There could be appeal with the permission of the PC. The HC wasn't keen on issuing said certificates and in Viro v R held that they would no longer be bound by PC decisions. Section 74 has not been amended, and as you have so eloquently pointed out, the Constitution can only be amended by way of s128 referendum.

    However, s11 of the Australia Acts effectively makes s74 a 'dead letter', as far as it is legislatively possible to. Accordingly, the Australia Acts limited the remaining avenues of appeal to the PC that were left.


    My comment pertaining to Hank's book was not meant to be offensive. Peter is a pre-eminent constitutional mind in Australia and his book is widely used across Australia when teaching public/constitutional law at Unis - It contains a mountain of background information/history that extends much further than the run of the mill general info you'd find on the internet.
     
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  5. john welch

    john welch Active Member

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    Dicta means judges' comments such as Kirby's. " Entrenched" refers to s 128 . ('Overview Manner, Form in Aust.' G Carney 1989 . also general definition of Aust Constit.' entrenched' ).

    Where did I state that monarchy was abolished? However the 1999 referendum establishes the point that s 128 is basic. So ." Section 74 has not been amended, and as you have so eloquently pointed out, the Constitution can only be amended by way of s128 referendum. However, s11 of the Australia Acts effectively makes s74 a 'dead letter', as far as it is legislatively possible to."

    That contradicts itself and contradicts your comment on 1999 referendum failing. Does this mean you have no explanation about s74 being lawfully repealed and why it still stands ?
     
  6. Iamthelaw

    Iamthelaw Well-Known Member

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    Ok, this will be the last post I write in this thread.

    You write: Where did I state the monarchy was abolished?

    My reply: In post 9
    You write: That contradicts itself and contradicts your comment on 1999 referendum failing. Does this mean you have no explanation about s74 being lawfully repealed and why it still stands ?

    My reply: No, it doesn't contradict itself. Again, you're not understanding the fundamentals of the Constitution. Section 74 was never repealed - Full stop. The effect of Section 11 of the the Australia Acts is that makes it effectively a dead letter. Again you need to read more about not only the Australia Acts but also the conventions.

    Perhaps another member here can attempt to explain it better than I?
     
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  7. john welch

    john welch Active Member

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    "Implications as a precedent" is not " this precedent was used ".

    "For abolishing monarchy" is not "monarchy was abolished"...

    " ..can only be amended by way of s128 referendum."

    Well yes, that sentence is your correct one. Thanks.
     
  8. Rod

    Rod Lawyer
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    An act of parliament cannot override the Australian Constitution. Therefore S11 AA does not repeal S74 Aust Const.

    The High Court has firmly stated that while they still have the power to refer matters, they never will: Kirmani v Captain Cook Cruises (1985) 159 CLR 461. Something similar was also stated in Sue v Hill. See Hanks p1110-1111.
     
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  9. Iamthelaw

    Iamthelaw Well-Known Member

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    Spot on.

    Hence all my earlier posts stating that s74 is effectively, what is known as a dead letter.
     
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  10. john welch

    john welch Active Member

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    Numerous companies don't pay tax so taxation is a "dead letter" . The High Court may agree with you that being a dead letter is a legal principle, similar to George Washington's gunpowder.

    However in "The High Court at the Crossroads" 2000 Anne Twomey, in article pp 105-124, says 1986 Act could not amend Constitution s 74 . 1986 s 16 exempts the High Court from being barred from Privy Council. She says that s128 "makes it unclear" how s 15 of 1986 Act is a valid power and so there are "serious issues" with some sections of 1986 Act .

    Appeals to Privy Council are still legal and cannot be impaired. Apparently this includes State court appeals according to the issues raised by A Twomey, Sydney. The 1986 Act is flawed and judicial bluster about "obsolete" Privy Council is non-legal language. If the Queen in Council can be extra-judicially abolished then so can the monarchy , Senate , Reps and Mr Turnbull by Act of a State Labor government.
     
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