Is Local Government Unconstitutional?
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- Опубликовано: 11 сен 2024
- There are lots of claims spreading on social media that local government in Australia is unconstitutional because it is not mentioned in the Commonwealth Constitution and referendums to include mention of it were defeated. It is also claimed that local government has no power to impose council rates.
This video addresses these claims. It explains the history of local government and how it fits into Australia's constitutional structure, drawing on the Constitutional Conventions and commentary in Quick & Garran. It discusses the taxing powers of the States and their power to permit local government bodies to levy rates on land.
The video sets out the proposed constitutional amendments in 1974, 1988 and 2013 that dealt with local government and shows that none of them had anything to do with abolishing local government or making it 'unconstitutional'.
The video also refers to court cases which have dismissed these arguments that local government is unconstitutional and described them as being 'entirely lacking in merit'.
Finally, it points out that such claims are spread through disinformation factories as a means of foreign interference, designed to undermine the democratic system by corroding trust in it. It asks viewers to stop, think and verify before passing such claims to others.
I pay $2k in rates pa and in return receive a minimal rubbish collection provision, the use of some badly maintained roads and a few other unspectacular services. Not value for money
Not too mention the several different bodies that have different powers that make it a merry go round for anyone trying to get to the bottom of what is really going on. EPA used it's power to initiate a re-zone, which would incur a rate rise. Their reason, making 100acres rural residential. Why the change, there is nothing extra offered, except a name change in the zoning which raises the rates creating a loophole in local government to raise rates easier than the usual way, which is much harder. There seems to be moves to make contesting anything a circus act!
@@WaterholeExchange
Yes, this whole shitshow is just 1 big circus, only difference being we are the circus clowns being made to perform! Dont know bout you, but does NOT sit well with me in anyway shape or form. WE are all their amusement, I cant see it any other way!
What you seem to be saying is that your local council is not doing its job properly. This is not a criticism of the system of local government. If your council is as inept as you state then the thing to do would be to work to replace the councillors with more competent individuals.
Very much the same here and a corrupt council.
Do you have any idea what it really costs to get rid of your garbage? 2K is nothing really, for the services councils are expected to provide.
Why is it that when a Referendum question is passed it is binding for ALL legislation, yet when it is rejected, the decision isn't binding on any legislation?
Doesn't NO mean NO?
Isn't a Referendum the highest level of democratic decision making?
This is a genuinely sincere question.
Yes it does. No doubt you are referring to the 1988 referendum? Question 3 to amend the constitution to recognise local government so the Federal could control them. The vote was no, so therefore nothing happened and nothing changed. People have been spreading stories that councils were voted out etc. That is not true.
In this case, it's because local government already existed and the power was held by the states. In general however, a negative response to a referendum does bind the legislative capacity of the government. Section 51 lists the powers of the government in creating legislation and if a referendum fails to add new powers to that section they cannot legislate on bills regarding that topic. This was the case during the communists referendum of 1951, where the government was restricted in their ability to make law restricting certain activities by communists as the referendum didn't pass.
@@cloaker416 personally I am a supporter of the Swiss model, but we're not Swiss.
@@johnoneill6231 Actually the Referendum that did come to mind was the last one vs the actions of various legislative bodies who are defying the will/decision of our Nation.
OK - the answer is that when you vote in a referendum, you are voting about whether you want to make the amendment proposed by the referendum, or whether you want to leave the Constitution as it is. If you vote No, it just leaves the Constitution as it is. It doesn't have any kind of effect of restricting existing powers of the Commonwealth.
So when you vote in a referendum to reject an amendment that would have inserted words in the Constitution to allow the Commonwealth to fund local government directly, all that means is that those words are not put in the Constitution. It doesn't abolish local government. It doesn't even ban the Commonwealth from giving grants to local government if they can validly do so under another power. A 'No' vote just means that nothing happens, as opposed to some kind of imposition of a negative constraint.
Dear Professor Twomey, please do a piece on the legal implications of Local and State Governments running their own foreign policy, flying foreign flags and passing motions and entering into agreements in support of foreign governments and non-state actors.
I'll add it to the list. The short answer is mostly this stuff is just politics and hot air and has no legal implications at all (as opposed to political implications).
States and local government bodies cannot enter into 'treaties' on their own behalf, but they can enter into lesser agreements, such as a memorandum of understanding or a sister-city agreement. I've written a bit about it, so could do a video about it one day.
@@constitutionalclarion1901 Yes, I recall Dan Andrews tried something like this and was undermined by Scot Morrison.
@@crazyhamhe wasn’t undermined he had entered into a contract with a foreign country without consent
@@BESHYSBEES I think Scomo also changed something to make sure Andrews couldn't get away with it.
I don't recall the details but I am glad he was Stopped.
I really didn't trust Mr.Andrews haha
Why is the coat of arms mirrored in the NSW Supreme courtrooms to the bar association underneath the Supreme courthouse in Sydney ??
Why in a dictionary date 1895 does it state that statutory law state law and legal code are the undoing of gods law ??
Councils are straying from their real purpose,what they are paid to do.Like social engineering.
The real heart of the problem is that state legislation governing councils is so restrictive that elected councillors become powerless and are unable to access meaningful information on the day to day operations of councils
CEOs of councils now have all the power and they are not elected
That is why people have lost faith in local councils and listen readily to those who would undermine the system
Yes another podcast on the constitutional, state level and municipal councils relationship would be interesting.
Interesting perspective, and probably accurate, especially where CEOs are effectively political appointees, as is the case for some of the larger Councils.
Another problem for the LG sector is that of a workforce which is poorly skilled, particularly in the public facing roles such as compliance. Efforts to manage that lack of skill include outsourcing (most parking compliance in urban councils is managed by an external provider called Orikan Group), use of cameras and other surveillance devices and extremely rigid, bureaucratic policies and procedures. All of hat leads to members of the public viewing Councils as an impediment to everyday life activities rather than a facilitator.
You seem to be the only one aware of the current nsw local government act.
We must admit local government has gone rogue. Aggressively upping rates and influenced by bureaucrats. There is always a cause for the questioning and the current disdain towards local councils.
But there's a big difference between disagreeing with what a council does, and claiming that it is invalid. We need a more rational debate directed at the real issues, not pretend excuses for not paying rates.
If not happy with Local Government and their decisions - consider your next vote and/or get involved so that your concerns are addressed, don't just whinge......
@@RailfanDownunder i do that. I also educate myself and not make assumption or attack those that state their opinions.
@@constitutionalclarion1901 As someone posted above "State Governments running their own foreign policy". Local governments have no international personality. We could argue that their conduct regarding foreign policy and sister city stuff is an abuse of power, and done beyond their power and not in line with the various council’s original charter or constitution which is locally focussed. The HIGH COURT OF AUSTRALIA said on 17 December 1975: 36. The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless (see Bonser v. La Macchia (1969) 122 CLR 177 ). Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ. NEW SOUTH WALES v. THE COMMONWEALTH ; (1975) 135 CLR 337 So we can presume that if the States have no international personality then the Councils most certainly DONT.
@@Whoknows19769that’s the point. You are just giving your opinion. No facts.
Australia has held two referendums specifically focused on local government recognition in the Constitution. Both were "not carried", so Local Grubbament in Australia was established through state legislation rather than federal constitutional recognition. Now they just do whatever they want, and call it "legal"!
1. **1974 Referendum**: This referendum sought to allow the Commonwealth to grant financial assistance to local government bodies and to borrow money on their behalf[4]. The outcome was:
- Not carried
- Obtained a majority in only one state (New South Wales)
- Overall, 46.85% voted in favor, while 53.15% voted against
- Failed with an overall minority of 458,053 votes[4]
2. **1988 Referendum**: This referendum aimed to formally recognize local government in the Constitution by adding a new provision (Section 119A) to ensure the establishment and continuance of local government systems[1]. The outcome was:
- Not carried
- Failed to obtain a majority in any state
- Overall, 33.61% voted in favor, while 66.39% voted against
- Rejected with an overall minority of 2,335,741 votes[1]
Both referendums were unsuccessful, with the Australian public rejecting the proposed constitutional changes. It's worth noting that a third referendum on local government was planned for 2013, which would have addressed the financial recognition of local government. However, this referendum was abandoned due to the federal election being called earlier than anticipated[5].
The failure of these referendums aligns with the broader trend in Australian constitutional reform, where voters have historically been reluctant to approve changes. Since federation, only 8 out of 45 referendums have been successful[2], highlighting the difficulty in amending the Australian Constitution.
Citations:
[1] en.wikipedia.org/wiki/1988_Australian_referendum_%28Local_Government%29
[2] en.wikipedia.org/wiki/Referendums_in_Australia
[3] www.aec.gov.au/elections/referendums/referendum_dates_and_results.htm
[4] en.wikipedia.org/wiki/1974_Australian_referendum_%28Local_Government_Bodies%29
[5] ukconstitutionallaw.org/2013/11/14/paul-kildea-australias-abandoned-local-government-referendum/
If you watch the video, you will see that all of this is explained. Local government was established by the colonies and continued by the States, under plenary State legislative power. Neither referendum had any bearing upon the continued existence of local government at the state level.
If you don't believe me, just go to Trove and look at the newspaper reports before and after each referendum. You will not find any suggestion at all that the people voted against the existence of local government or that local government would suddenly cease to exist after the referendum. If that was actually what was happening, it would have been a big deal and all over the papers. There would have had to have been new systems put in place to collect garbage and fulfil all the other functions of local government. But there's not a whisper of it there, because everyone knew perfectly well that the referendum would not affect the existence of local government at the State level.
All of this is very easily proved. Go and check it yourself, and you will discover that people who have been feeding you these stories about the people voting against the existence of local government are just lying to you.
@@constitutionalclarion1901 Thank you for your reply. That makes sense. 😄
Local government controls planning approvals for new houses, so the houses comply with Australian Standards. But often they do not.
Yes, it seems to be a case of "all care and no responsibility".
Actually they don't ... The council approves the development and applies state laws ..the certify .. (more often private) .. apply the BCA.. standards are not mandatory .. and yes non of it is done well...😮
Every Australian school student (Years 11 and 12) should have access to these talks. They are brilliant.
As someone who is in Year 12, but having to do Homeschooling full time. This is much better than anything I’ve seen in a classroom! We need more people to be able to see this!
I have been a software engineer since before the internet - this is exactly what we always dreamed of for this medium
Really glad to be helping. Thanks for letting me know.
"Every Australian school student (Years 11 and 12) should have access to these talks"
I agree. And perhaps just a read through to the Constition and its structure once in the journey.
General ignorance about its content, what it controls, and what it doesn't, is lamentable.
@@alexanderSydneyOz True. Although for youngsters it's a rather dull read. I was most disappointed when I first read it in Year 9 at school, as it is rather like an instruction manual and lacks inspiring rhetoric. However now, I really appreciate the fact that there is no inspiring rhetoric (which would allow Courts the room to do whatever they wanted) and that it sticks to boring clearer rules.
1. How is it that the council dictates what you can do on your own property .
Surely having a dog on it is not under their jurisdiction ?
Council flaunt the fee simple tital deed Bob Hawk got rid of in the 80s taking away the property ownership rights away (first in law) making them tenants on their own land governed by the council. .
2. Then there is the council's acknowledgement of traditional owners of the land that's not what the people who paid good money for their property or Anzacs that died for. This is a new development outside of people's will and proof that the members are not acting in the people's interest , If that is not treason then I don't know what is .
The powers held by local government are conferred by legislation. Look at the Local Government Act in your State and look at the relevant legislation concerning domestic animals. For example, in New South Wales it is the Companion Animals Act 1998. You shouldn't just assume that Councils act unlawfully - look at the actual law.
As for treason - you are correct that you don't know what it is. I have done a video about it here: ruclips.net/video/YxF3wrLMYiA/видео.html.
A good case to read on the "Fee simple alienation" myth spread by various people online is Bone v Mothershaw [2002] QCA 120. This decision was appealed to the High Court, where leave to appeal was rejected in Bone v Mothershaw [2003] HCATrans 779. In Queensland the Constitution Act 1867 gives the Executive power, with the advice and consent of the Legislative Assembly, to “make laws for the peace, welfare and good government of the colony in all cases whatsoever.” These words have traditionally been used to confer “the widest legislative powers appropriate to a sovereign”. (See Ibralebbe v The Queen1964 AC 900 at 923 and Union Steamship Co of Australia Pty Ltd v King (1998) 166 CLR 1 at 9-10) Such words permit the Legislative Assembly of Queensland to pass laws restricting, modifying or even removing common law rights.
@@auspseudolaw why deal with the council if the traditional owners are acknowledge by the council itself. What's , that game ? Why do it ? Why cause additional confusion ?; where is the trust. ?
@@auspseudolaw it's amazing where the Tax payers money is used to fund court cases that those involved cannot afford.
A country with the population and complexity of Australia's... We do NOT need 3 teirs of Govt ... Fed .. State and Local ... it only promotes an unaccountable bureaucracy and burden on every taxpayer ... We need common and unconflicting laws across the nation. We only need federal and local NOT the 3 levels of public funded duplication ....
My local council will not let people speak in their meetings and you must register to be allowed in, they couldn't even give me their Constution or the rules they are bound by.
When you cant voice your opinion to your elected officials that sounds like a tyranny not people who do the will of the people.
It's sad that it has come to this. Councils are so often threatened these days by violent and mentally disturbed people, that they feel the need to put limits on access for the safety of councillors and council staff.
I'm sure you can voice your opinion by other means, such as writing.
What council services were there in the 1800s?? No running water. no shit pipes. No tar roads. No rubbish bins.
There is a three volume work by F A Larcombe, called 'The Origin of Local Government in New South Wales'. Volume 1 covers 1831-58. Volume 2 covers 1858-1906. Perhaps you should read it.
On a note of the last point you make. The level of corruption that has been found in some local councils (Ipswich City Council, Logan City Council, GoldCoast City Council) that has had the state remove the sitting council from power and put into administration pending the next election cycle has done far more to erode peoples trust in local government than any foreign power ever could.
These issues of corruption at the government level seems more predominant at the local government level than federal and state, additionally I'm fairly sure that the sentiments against local government or more specifically councils pre-date the existence of social media, and it is because of morally bankrupt behavior that feeds this sentiment. examples of this, Having an old ladies car toed from her driveway then "accidentally" crushed then trying to avoid any compensation for it. another example. fining every local resident on a narrow street because they park with two wheels on the curb to allow emergency vehicles to pass through, another example, sending a compliance notice for over grown grass to a home owner of the neighboring property to a housing commission house for said over grown grass but then refusing to send a compliance notice to the housing commission who was actually responsible for the grass in question. selling council owned property at a discounted rate to business owned by a relative of the mayor and do it in a closed council session off the public record so that rate payers don't find out the details.
I can think of many many more examples. My suspicion is that the reasoning for this is that there is nowhere near as much media scrutiny on the local government as there is on state and federal.
As a city Councillor I've never been threatened (in relation to this), but the 'unconstitutional' line about local government I get about once every two months. The latter usually in regards to rates and parking fines.
I'm glad you've not been threatened. I've seen material sent to some councillors, and it's quite awful. While it makes no legal sense (being mostly a word salad of misunderstood legal terms, such as 'writ'), it is still quite intimidating and aggressive.
thank you for your service
@@constitutionalclarion1901 Oh, you get an anonymous death threat or two every year, but not over this.
@@davidbrown4849 State government can organise it's administration in a suitable and sustainable manner. I don't get why anyone thinks that terms defining administrative borders change the local (State level) nature and role of any administrative bodies or decision making processes of those bodies. But then again, call me silly, been around the world a couple of times and more as the old.song goes, seen similar issues in other parts of this planet, so it doesn't surprise me that we see it here as well.
Personally, am not a fan of centralised government nor overkill of red tape that too many office jobs and roles bring about.
There does need to be a reasonable balance that doesn't lead to either extreme.
It's a job, be it local or Commonwealth level and if the job is done well good, if not, there are many people qualified for the job who may be interested. It really is that simple.
Cheers and just do your best and you shall sleep well at night no matter what job you do.
God bless.
What she needs to cover is no States have authority under the Constitution to impose a tax as stated in sections 51 and 52 of the De jour Commonwealth of Australia 1901 Constitution, and from the Constitutional Commission (1985 - 1988) report that.
“The power of taxation is held exclusively by the Federal Parliament.” Local Government Rates being a tax are unlawful.
The High Court of Australia ruled that “State Governments could not raise ANY-TAX”, and because of this the ‘State Excise on Fuel, Tobacco & Alcohol’ was removed.
Treasurer Peter Howard Costello & Commissioner for Taxation Michael Joseph Carmody all stated before the introduction of the infamous GST “Goods and Services Tax”, Quote: “Local government Council Rates will attract no GST because Council Rates are a tax and we can’t tax a tax”.
The 1999 Referendum removed the Australia Act 1985 and 1986 and all Acts regarding Local Government.
Local Councils are registered on the Stock Exchange as private corporations and as such, they are private corporations under the De Jour Commonwealth of Australia Constitution or legislation to act in any capacity, or enforce any legislation or other functions whatsoever they are commercial/business operations.
UK based Jardine Lloyd Thompson Group (JLT) insures all councils in Victoria, NSW and Queensland, and possibly the rest of Australia you can look up the ABN Lookup for your local council which includes their ABN Number and GST registration they cannot trade legally unless they have an indemnity insurer.
Councils also have a DUNS - Dun and Bradstreet-number - and is legally required to be fully audited every year.
JLT is the appointed “Scheme Manager” of Statewide Mutual. “JLT is the market leader in the provision of insurance services to the Local Government industry administering self-insurance schemes across all states which comprise over 450 entities Australia wide,” the company states on its website. Note the use of “industry”.
ACTS INTERPRETATION ACT 1901 - SECT 2B
"Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. ”..
, it has clearly excluded the geographical country known as “Terra Australis” as the geographical identity of “Australia”.
Australia is administered via the territories namely the external territories.
The Modern Slavery Act (2018) defines Australia as the external territories that being:
• Ashmore and Cartier Islands
• Christmas Island
• the Cocos (Keeling) Islands
• the Coral Sea Islands
• the Australian Antarctic Territory
• the Territory of the Heard and McDonald Islands
• Norfolk Island.
One’s property is not on Norfolk Island, or the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, or in (Australia), or the Commonwealth of (Australia) or the State of your State or your Council as all these are all registered corporations with ABN‘s that are registered with the United States Securities Exchange Commission (SEC).
There are no provisions in our Constitution for a third tier of government in this case Councils/Local Governments.
Australians voted in the following referendums on Councils:
• 1974, Australians were ask to…. “Grant financial assistance to local government bodies”…
• 1988, Australians were ask to …” To recognise local government in the Constitution”…
Australians voted NO to both proposals therefore, the States have NO authority to institute councils and cannot act as a third layer of government they are invalid/unlawful.
The Commonwealth of Australian Constitution of Australia 1901, Section 109 “ When a law of a State is inconsistent with the Commonwealth, the later shall prevail, and the former shall, to the extent of the inconsistency, by invalid”.
Only we the people who are in fact the Commonwealth can change the constitution when we vote in a referendum.
Any State law that is inconsistent is therefore nul and void, “we the people”, (the Commonwealth) have the lawful authority.
"The Constitution does not currently recognise local government."
To circumvent the will of the people and get around the defeat of the referendum, in 1979 State Governments rammed though State Acts authorising Local Councils as a third tier of government (Local Governments) to institute councils and set them up as businesses with ABNs, this was illegal without any Constitutional authority and ignoring Section 109 of the Constitution (sound familiar with The Voice Referendum and Treaties among others over the years).
If a State Government tries to establish a Local Government (ABN Company), that ABN is automatically regarded as a private corporation and it, therefore cannot be Government.
• Local Government can only be a Department of a State.
• Departments of State Governments cannot govern us, cannot create Laws (Local Laws)
• Local councils cannot tax us i.e. charge us rates, licences, fees, levies etc.
The ATO classes Local Governments and Councils as ABN Trading Companies.
Fair Work Act Sec 35 …. “ If you have an ABN and you employ people, you are a Company”. Companies require a written contract with full disclosure to do business with anyone, that would include "ratepayers"
In 1984 a referendum was held and a question put before the people was to grant Commonwealth and State Interchange of powers to enable the Commonwealth and the States voluntarily to refer powers to each other, AUSTRALIANS VOTED NO.
Therefore, the States have NO authority to institute councils as a third layer of government and are invalid/unlawful.
Former Attorney General Robert McClelland also confirmed this in a letter he sent to a member of the public dated 10 June 2010, regarding the 1988 referendum as to the lawful existence of 'local government' and wrote…..
"The Constitution does not currently recognise local government."
In 2015, a High Court Australia decision 11 …” If you have an ABN and provide services for money, you are a Trading Company” that cannot be changed or over-ruled by any Statute of Act.
Chief Justice Paul De Jersey said in a speech at the Menzies Research Centre on the 27ty July, 2009 that “Corporation have no power over the living”.
The AUSTRALIAN GOVERNMENT and all its ministries, departments and councils are registered as Corporation in the USA. Therefore, none of them have any authority or power over “We the People” of Commonwealth of Australia living.
REF: www.legislation.qld.gov.au/view/html/inforce/current/act-1990-098/
Seems like every "law expert" has their own interpretations of law/constitution.
Now actually watch the video, which sets out the terms of the referendums and explains why you are wrong. Just because you want something to be true, does not make it so.
Oh how many times have we heard these baseless assertions. As the author said, watch the video. To help you in the meantime, the 1988 election result merely meant that nothing changed ie councils continued as they always had. An ABN is for tax compliance only, doesnt make anything a corporation .If it was a company, it would have an ACN and the acronyms pty ltd. And clearly they do not. And ABNS didnt exist in 1979, they only came to be in 2000 with the introduction of the GST and a New Tax system. "we the people" is an American term derived from "we the white settlers" with its roots in racism and white supremacy. Thats enough egg on your face, for now. :)
Exactly , and all our properties should be held in FEE SIMPLE with the deeds of the royal coat of arms the govt have no authority to change this without a referendum which they knew the people would have said NO!. Corruption runsd deep its all getting exposed.
My reply was deleted unfortunately, so I will say again, everything you said is wrong and easily disproven. ABNs didn’t exist in 1979 by the way. lol that’s a new one. If the author deleted my previous comment , that’s disappointing.
@@johnoneill6231 Unfortunately there is no point in arguing with people who refuse to accept fact. You still cannot point out anything in my video that was wrong - which is all verifiable from the sources from which I quoted.
The date at which ABNs were introduced is utterly irrelevant to the validity of local government under the Constitution. This nonsense about corporations is directly imported from the United States and makes no sense in Australia.
With imprisonment of whistleblowers, censorship and corruption throughout our govt. we really don't need fake information to cause more distrust. It's frustrating when misinformation takes hold, it's an absolute hindrance to the truth getting through. So frustrating.
Thanks for doing this video, I'll bookmark it in case I ever run into someone spreading it
Terrific - thanks.
We don't need the first three either - mum & dad with three kids to feed can't be expected to know the implications of laws they were never taught - good government in the interests of the people should have seen to that
"With imprisonment of whistleblowers"
You have to remember that McBride isn't *just* a whistleblower; he revealed stolen state secrets with full knowledge of what he was doing.
That is never going to be acceptable in any country. Nor should it.
@@JohnJones-zx9pu The removal of civics education from the curriculum in the late 1970s. While the exact reasons for this decision are unclear, it has been suggested that political parties may have played a role in its elimination. By removing the teaching of civics, it is argued that these parties aimed to weaken the understanding of the Ausgtralian people's rights and responsibilities, thus hindering their ability to participate effectively in the political process. This has had far-reaching consequences, as subsequent generations have grown up with a diminished knowledge of their civic duties and the workings of government. It is only recently that people have begun to awaken to the significance of this omission and civic education should be interjected back into the school curriculum. By doing so, we can empower future generations with the knowledge and skills necessary to navigate the complexities of our democratic system and hold their elected officials accountable as it was in the early 1900s .
I would much rather have a county system like the USA were we vote for a sheriff and vote for our judges.
Agree totally.
Local Government has nothing to do with the Commonwealth nor the Commonwealth constitution. It is part of state government and empowered under state and territory local government acts as an administrative convenience. Some don't even have local government, the ACT being a case in point.
Local government should be largely apolitical because ideology has little to do with the service it provides. Whatever the arrangement, portholes still have to be filled, garbage collected and other local services provided, hence the need for local rates and taxes. The important issues therefore are efficiency and effectiveness.
If you think there is something wonky about your local government, and occasionally there is, write to your state's local government minister. If they agree they will dismiss the council and put in an administrator until reforms are implemented and new elections are held.
Didn't we have a referendum on the voice, yet the government lost dismally.
Yet they are still doing the voice through the states.
The Voice referendum was about putting a provision in the Commonwealth Constitution to establish a Voice. The referendum failed, so that didn't happen.
States have plenary legislative power. They can legislate to create their own Voice if they choose to do so. The Commonwealth referendum made no difference to State legislative power.
Are you saying there are 3 levels of Government? Not according to Reid v Sydney City Council 1994 Re taxes HCA EV case in 1923 says whole different story.
No one has a problem with pay for services like garbage collection however it would be a lot cheaper for rate payers if they were billed direct from the service provider rather than be paying GM of a council a $400kpa salary.
There are also some random people on the Internet who are reliable sources. We thank you for being one such person and providing information in ways that most can understand. It's a shame that so few university people are following your example.
Thanks. The problem is that it is very time consuming, and hard to fit in with all the other responsibilities of academia. But hopefully it will prove useful in the long term.
Now if only you could tell us whether the Govts. either State or Federal had the constitutional and legal right to impose/enforce Health Directives such as masks and injections on the population would be very interesting.
I, and many others, are so grateful to you for your UTube videos. They serve to settle many Pub arguments and inform the population generally on a subject(s) which, even lawyers are uninformed. Thank you for what you do.
Thanks. Much appreciated. Glad to be an authority on pub arguments!
Regarding some of the closing points, I do find it interesting how little the Australian constitution and its general character is taught in schools and such, especially when compared to America, for a totally random example. As an Australian I feel like I have learned more about how America runs and operates than how my own country does (though I do feel a bit of bias as America definitely has a very strong influence over a lot of my experience in life). I feel a lot of these issues and "foreign intervention" could be avoided through even a little bit of mandatory education about our country, but maybe I'm wrong or not thinking this through fully, just some thoughts.
My guess is that it suits certain agendas that Aussies stay asleep and don't enquire. I agree with your sentiment.
I agree. There needs to be proper teaching of civics in Australian schools. I gave evidence about this to a parliamentary committee not long ago.
I think that part of the problem is that the Australian Constitution talks a lot about governments and courts and such, but doesn't really talk about you and I. This gives it a kind of remoteness or abstractness that the constitutions of other democracies don't necessarily have. It isn't taught that much because it doesn't feel like it has a lot to do with us most of the time.
@@constitutionalclarion1901 Did you get a fair hearing?
@@DeGuerre After "we the people' in a preamble everything we have is upper class pontificating to we the plebs. To me.
I'd like to know more about the guy who got nominated against his will and still managed to become mayor. Who was that?
His name was James Wilshire - and his claims about indolence, etc, are recorded in a SMH article from 16 September 1842 here: trove.nla.gov.au/newspaper/article/12421657/1521614.
@@constitutionalclarion1901 Thank you!
Clarion. When was there a referendum to change the Commonwealth Constitution to the Australia Constitution in 1973?
There was no amendment to the Commonwealth Constitution in 1973. There were some referendums held in 1974, but they failed so the Constitution was not amended.
@@constitutionalclarion1901 I respectfully ask that you look into the major changes made to the Commonwealth Constitution in 1973. The Commonwealth Constitution was renamed and became the Australian Constitution along with numerous definitions. The Queens was removed and replaced by the "Queen of Australia" along with the requirement of Royal Assent. Any change to the Constitution requires referendum by the people. I can prove this and provide much more proof that our Constitution was hijacked and the country taken from the people.
@@clydesummers394 No, the Constitution wasn't changed. The words remain the same (apart from the 1977 amendments). Look at it for yourself here: www.legislation.gov.au/C2004Q00685/latest/text or here: www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/preamble. Show me what words changed in 1973? (Spoiler alert - none of them).
@@clydesummers394that has been disproven over and over. Comes from Rod Culleton I suspect, a convicted criminal and a bankrupt.
@@constitutionalclarion1901 of course when you look at a .gov website they will be worded how they want you to see it lol. Read the book then read the website they are different.
Thought petrol tax paid for roads and councils are given huge budgets for everything else
Does this mean the City of Sydney Incorporated is the same as The City of London or Vatican City?
No. Each would have their own legislation which sets out the relevant status, powers and limits.
This video is well overdue and easily debunks all the "rot" on the internet.
A point that was made cut to the truth is that "Australians are not very well educated in matters of the Constitution " , so true as I find it very hard to have an educated discussion with the average Aussie regarding anything constitutional., and yet their everday life is affected by this instrument every day.. Civic education is well overdue and should be taught at all levels of education
Thank you for taking the time to do these very educational videos.
Which raises the question why are we not taught the constitution? US cites seem to know theirs inside out.
"curiously people don't tend to claim that it has no power to provide the services that are actually paid for by those rates" 🤣🤣🤣🤣🤣🤣🤣🤣
Thank YOU for hosting! I look forward to seeing you next time, too.
Cheers!
Councils over time have been given more and more power... a different beast than today... they are really just a branch of State Govt though... Hence State's can sack Councillors/Mayors/Intervene...
Another peoblem is the country is trading in bankruptcy, and the pound sterling was removed from the economy, therefore the only legal tender is Bills of Exchange which means no one has to pay any bills because the trustees of the bankruptcy are the ones who guarantee the debt discharge and not we the commonwealth people.
Wrong
@johnoneill6231 wrong in what?
ive stopped paying rates to my thieving port stephens council as the roads are like a 3rd world country after a bombing and yet they put on a new general manager at 230k a year--- i welcome them trying to get the money---i dare them to try
They do eventually, it's inevitable. But if you want to be extremely insistent, they will wait a few years and then take what you owe out of the money they get from auctioning off your property, and there's nothing you can do about it.
You have made some really serious points. Despite the Robust nature of our Government and a countless number of institutions that not only preserve Australian Democracy but also encourage and promote a united and cohesive society, it is absolutely detestable that Foreign Actors try to destroy these institutions, thank you so much for addressing issues like this directly. Your Amazing.
So, the government siding with multinational corporations is not siding with foreign interference?
@Shaunmacgillivray9189 I completely understand the frustration with the way in which certain corporations “extract” the resources of Australia, and I’m also aware of how lobbying can distort the way in which foreign powers address Australian Interests, but there are key geopolitical considerations that account for why a sovereign nation like Australia puts up with these deeply intolerable conditions, now at the end of the day since federation the dominant naval power has also been a member of the Anglosphere so In a sense for many Australians this pill can be easier to swallow. But politics is about playing the end you have and not the one you want And as such when I talk about foreign interference I am not talking about the concessions Australia has to make to ensure the key strategic partnerships that ensure the stability of Australia’s Economy, these are two very different things and shouldn’t be lumped together.
becuase in a sense the economic impact of international instability is in essence one of the three key considerations that one must make about when considering Australia’s geopolitical position.
And as such these considerations always play into the calculations of Australia’s foreign policy these are:
1. Idealogical Australia is a democracy and as such if it is not contradictory with the other two considerations, Australian popular opinion can effect how Australia interacts with a foreign power
2. Economic The very same distaste for multinationals usually stems from corporations that own shares in major mining companies but once again to trade these resources, Australia needs the support of a dominant naval power to protect ALL of its trade, this doesn’t mean just trade with Australia largest exporter but all trade everywhere in a sense even if in the popular mind a nations actions are aggressive Australian polticians have one of two swords to fall on 1) they can give into popular opinion and see the effect on the economy which may cost them political capital or 2) they can ignore popular opinion and not be confrontational with said foreign power
3. Defensive Australia’s geographic position in the world means that the threat of invasion is almost always a spurious one, this is advantageous in many ways, but it does mean that unlike a country like Ukraine whereby support for the government is high when the nation is defending itself, Australian popular opinion war defence spending tend to be a fickle one and as such politician needs to either consider the ideological or economic concerns before they should commit themselves to a geopolitical strategy.
Note also that because of compulsory voting in this country weather you like it or not when politicians fail to make this considerations the population will not tolerate their ineptitude and fortunately I can only think of a couple of politician who have not properly understood Australia’s geopolitical position in the world, note also that this isn’t what I was talking about when I was talking about Foreign interference and at the end of the day the other flip side of Australian geopolitical considerations is that when it is not in Australia’s idealogical or Geopolitical favour to make concessions on the international stage it won’t. This is why tolerating foreign interference from nations that are hostile to Australia is not in the Interests of the Australian people because at the end of the day just because Australia must use its sovereign power to make concessions in order to ensure its geopolitical survival, it is still very much a sovereign power and should always be treated as such.
Local Government should be named
Politically
Just because courts have ruled that the Magna Carta has no relevance under Australian law doesn’t mean future rulings can’t and won’t over turn them.
The courts haven't ruled it has no relevance. It is still a useful historical reference point for legal principles. In very rare cases, a right it gives rise to can survive if it has not been superseded by any later laws. But the key point is that later statutes override earlier statutes. That is fundamental to the entire system of law, so it is not something that a court is just going to change its mind about in the future.
@@constitutionalclarion1901
And new laws can be ruled unconstitutional and as a result be repealed.
Isn't there a principle in law. "first in time, best in law" particularly as a law may have functioned well for a very long time whereas a new law may not have been well thought out and tested?
Who is the queen of Australia that they all take their oath to??
Queen Elizabeth II is now dead. The current King of Australia is King Charles III. The rules of succession, as received from the United Kingdom, have become part of Australian law and determine who is the monarch with respect to Australia, since the Crown became divisible.
@@constitutionalclarion1901 that’s not the answer to my question. Who is the queen of Australia??
@@markboccanfuso2871 The problem is rather, that you do not recognise the fact that Elizabeth II held different titles here, compared to the titles she held in the UK, that was ultimately a result of the collapse of the British Empire in 1926. It is called the principle of the divisibility of the Crown, and is recognised by the legal systems in both the UK and here. Read Sue v Hill in the High Court.
@@markboccanfuso2871your question has been answered.
If the Constitution and Law was taught in High School, none of the would be happening.
I'm not so sure. In the last decade, I've documented so many highly educated people falling for pseudolaw concepts, including trained practising lawyers like Wayne Levick, and more recently Nathan Buckley and Serene Teffaha, and even barristers like David Fitzgibbon and John Walsh, who really should possess a standard of education in constitutional law to make this completely impossible. Serving councilors, mayors and other public servants, even serving police officers, fully convinced of the strawman duality theory for example. The mind virus had even infected the parliament itself, with senators such as Anne Bressington, Malcolm Roberts and Rodney Culleton becoming true believers.
Local Government literally predates the Constitution.
Thanks for clarification on local government, Professor
Could you also clarify Magna Carta bearing, status in regards to the constitution, being a Westminster document?
I'm thinking of the kind gift by Westminster donating Magna Carta corner to Australian parliament house.
There was quite a lot of material published on Magna Carta at its recent anniversary. But I'll put it on my list.
Very much appreciated.😊
I had the pleasure of seeing the document at Salisbury cathedral many years ago.
Although it is promoted as the Great Charter of Freedoms, it really only placed limits on King John's actions against the Barons and not the common man, the serfs. It was re-issued from time to time with amendments in return for tax funds.
It is an interesting document but it was quickly overturned, ignored and annulled by the Pope and reinstated and ignored again. It is important as it influenced the creation of the UK 1689 Bill of Rights.
Sadly it now gets raised and misrepresented by the members of sovereign citizen movement.
Great video. Please do a similar one debunking the endlessly repeated internet claim that New Zealand can automatically become a state whenever it so chooses because of the definition of “The States” in covering clause 6.
Ahh, yes. That's another irritating one. It rather suggests that reading comprehension is not being well taught either!
councils are breading ground for politicians
I published an article "Local Government in Western Australia" a month ago, which contains scans of Trove newspaper articles for properties sold by council for rates arrears going back to 1906. (same in NSW, and council elections going back to 1859) There is also copies of the Municipal Institutions Act 1871, 1900 and 1906, which each contain near identical provisions, the 1871 Act allowing the local council to collect Rates Arrears after more than 14 days of non-compliance by seizing goods on the property and selling them, and after more than 18 months of non-compliance by taking possession of the property and selling it. There's also the Local Government Act 1960, Local Government (Miscellaneous Provisions) Act 1960, the 1979 amendment to the Constitution Act 1889 (WA) of "Elected Local Governing Bodies", the current Local Government Act 1995, and the history naming every "Minister for Local Government" since it was established in Western Australia in 1949.
I've held up council in court with this, lost but had excessive fines dropped to a reasonable rate. While they paid for lawyers. So I still won.
But government has done a wonderful job of destroying it's own credibility without foreign interference
Cafes charge me a tariff for a cappuccino. This is must be illegal, because the establishment of cafes is not in the constitution. (Sarcasm alert)
Thanks for the alert. Given the nature of many of the other comments, I could have taken you seriously!
To quote the late great JRR Tolkien, author of Lord of the Rings, who was alleged to say, “there is no curse in the entish elvish as the tongues of men sufficient to describe the stupidity of local county councils” Local government is just another state government department. As an example, the minister for local government has the power to sack local councils. Another good one, keep them rolling Anne. Thanks.
What legitimacy does a government have when they along with all their government bodies and departments become a corporation?
As far as local councils, most were established as "municipal corporations" prior to Federation, other states redefined them as "bodies politic" as opposed to "bodies corporate". It doesn't make them "trading companies" for the purposes of section 51(xx) of the Constitution, that is another matter entirely, it must be answered by looking to whether, as a matter of substance, not form, the trading activities constitute a significant proportion of the council’s overall activities. (DP Anderson of the Fair Work Commission made some observations regarding this in Martin Cooper [2017] FWC 5974). Some councils have indeed been declared "trading companies" such as the City of Port Phillip in Matina Bastakos [2018] FWC 7650. It ultimately means very little and does not affect their obligations to collect rates, or any other statutory obligations. All it does is shift their obligations from State Industrial Relations policy to Federal Industrial Relations policy under the Fair Work Act 2009.
Professor, how about explaining the move from commonwealth government, to ABN corporation registered in the United States.
It cannot be explained because it never happened.
The fault lies with the turgid nature of the legalese. However, help is at hand; Artificial Intelligence can cut through the verbiage like a hot knife through butter.
I note in passing that before we were beset by Abrahamism, the Laws had to exist for 100 years before they were inscribed in the walls of the citadel. Ref: Our Oera Linda.
Further, In Celtic society, no laws were written down but had to be committed to memory by the Bards, thus ensuring that obscure, ineffective laws were forgotten.
Happy to pay for a service offered by council, bit not based on the monetary value of your property.
Speaking of local government and how it works can you please do a video on the practicality of abolishing the states and having just the federal and local governments? I frequently have this conversation with people who are also not well informed about local governments and the constitution.
Something off-topic (sorry).
I've heard that there have been some amendments to our constitution that was changed by politicians without a referendum going to the people to accept those alleged constitutional changes.
Is this true, and if so. Why?
Thanks in advance.
No, it's not true. The people who say this stuff never actually identify what the amendments are. Perhaps they mean the Constitution has been interpreted broadly by the High Court, or other legislation that has a 'small "c" constitutional' aspect has been enacted, such as the Australia Acts 1986. But the text of the Commonwealth Constitution cannot be changed and has not been changed without a referendum.
@@constitutionalclarion1901 So are we still ' under the Crown of the UK " ?
And is our Parliament still ' a Colonial Legislature " ?
@@constitutionalclarion1901. Thank you for your explanation. 👍🏻
I think you are referring here to the statement in the preamble of the British statute - the Commonwealth of Australia Constitution Act 1900. The preamble is a recital of the context in which the statute was enacted - i.e. its historical background, its purpose, etc. The preamble has not changed. The history remains just that - the history of how the Constitution came to be enacted. The Crown of the United Kingdom of Great Britain and Ireland no longer exists, since the departure of much of 'Ireland'.
The preamble is also not in the Commonwealth Constitution itself (which is in s 9 of the British Act).
in the US our crazies offen say the opposite that local governments are the only true governments and, for some reason, the local sheriff in charge of everything.its an interesting look at how different system's can influnce culture.
This brought to mind a question..is there any equivalent in Australia to "home rule" in the US?
these are states where local governments are constitutional in the state and have a similar relationship to the state as the state does to the federal government[instead of most states where local governments are legally extensions of the state and can be abolished or changed or whatever by the same]
I also wanted to let you know i just found out my college has access to your book ! I'll be going through it this week .
Thanks once again for the fascinating video
Glad your college has access to at least one of my books. I hope you find it interesting.
No, I don't think we have an equivalent of 'home rule' here, although there are some odd arrangements in relation to external territories. Norfolk Island for many years had a very different status to anywhere else - going back to promises made to the descendants of the mutineers of the Bounty.
@@constitutionalclarion1901 thank you! but I think i messed up on home rule. Wikipedia put it more clearly as as "In some states, known as home rule states, the state's constitution grants municipalities and/or counties the ability to pass various types of laws to govern themselves (so long as the laws do not conflict with the state and federal constitutions). ''which has an aftereffect of the protection I mentioned but its not the whole thing.
Thanks for sharing. Will try and use your synonym -Codswallop!. your videos are always edutaining. if possible i would appreciate it if you could do a video on how the constitution would protect a minority race, religious or other group if parliament/legislature passed a law/act that discriminated against them.
Thank you 😊 this is the 2nd video I've watched,
As I love knowledge and understanding our law, I've found since the internet
Has blurd overseas laws, so on
sadly, there has never been great with info,
esp" schooling and other avenues.
More opinions are not factual
We are over governed in Australia with a severe lack of value being offered for our taxes. Doesn't make it illegal, just distasteful.
Since we have no officially, traditionally, and Constitutionally installed Monarch since Queen Victoria died, all this talk about laws, etc., is just so much bullshit.
Get us a lawfully installed and accepted Monarch first, and then let us see where we go from there.
We, the people need the support and protection of our Monarch before we give any power to any government body.
What we have to put up with now is an unlawful corporatized ROGUE Government, and we are obliged under Constitutional law to dethrone it.
How can you be obliged under constitutional law to throw out the Government if you don't recognize the existence or application of the Constitution?
Perhaps it might be a good idea to actually read a book about the Constitution. It may allay your fears. There are books by both Melissa Castan and Luke Beck which are good introductory reads.
You explain items so well. Do you think SFSS debts were illegal? It appears so but no one is addressing it
I haven't looked at it, I'm afraid. But I suspect that it it were unlawful, someone would already have taken the point and had it resolved.
The court is a waste of time - always in every way what a farce
My Shire is an ABN, and the ABN number is on my rates bill. The Shire is a business. A business is bound by business rules. They cannot just suck rate amounts from their thumbs and not quantify exactly what it is for.
Anyone can have an ABN. The purpose of it is to deal with GST appropriately. Local government must do this, as well as corporations, charities and others. It does not mean that anyone with an ABN is required to make a profit. Not-for-profit bodies have ABNs too. Legislation confers power on local government bodies to impose rates and those rates are used to fulfil functions imposed on local government bodies.
@@constitutionalclarion1901 If it is registered as a business, it needs to quantify the service it is selling like any other business. And that is not happening.
@@smartuser4112it is not registered as a business. What part of an ABN is just for tax compliance don’t you understand
The Constitutional Commission Background Paper No 12 AMENDING THE CONSTITUTION, Issues Paper Committee on the Distribution of Powers stated that: " there has been significant opposition from State Governments on the basis of local government is not a system of government in its own right, rather it is created and regulated by State Governments and exercises whatever power State legislatures choose to delegate it." The 1988 question: A Proposed Law: To alter the Constitution to recognise local government. What is a definition of "recognise" in Oxford languages = acknowledge the existence, VALIDITY, or LEGALITY of. So from this definition, one can assume that we the people failing to recognise LOCAL GOVERNMENT at Referendum means that Local Government as a third tier of Government in Australia, is not recognised under Constitutional Law NOT VALID or LEGAL, if it was recognised VALID and LEGAL, the question wouldnt have been put to the Australian electors. We can rightly assume councils are nothing more than trading corporations, body corporates "not a system of government in its own right". If it is not a system of government, then how can it lawfully enforce by-laws on people who dont consent to their purported governmental power and authority? We can rightly assume that councils without the antecedent authority of the fundamental law, do not stand good in law, but unless of course, we might give them the Council Body Corporate our informed consent to conduct business with us as individuals. But can they really enforce their by-Laws on us?
What did Barton J. say on the subject of constitutional validity in Cooper v Commissioner of Income Tax (Qld) [1907] HCA 27; (1907) 4 CLR 1304 (28 June 1907)
"The legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government. Therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or to repeal any part of it, if the legislation questioned has not been preceded by a good exercise of such power, that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself.
Hence an implied repeal is not within the power to alter or repeal, and is not valid because it is not an exercise of legislative power. It is only when the instrument is altered upon the authority collected from its own terms that it becomes the new charter or constitution, and the confinement of subsequent legislation within its altered bounds, be they narrowed or widened, becomes in turn a condition precedent to the validity of that legislation.
Legislation, which could not be undertaken at all without the antecedent authority of the fundamental law, cannot overstep the bounds set for it by that law and yet stand good. Before it can avail, the bounds must have been lawfully extended".
As explained in the video, the Constitution gives specific heads of power to the Commonwealth and leaves everything else (including local government) to the States. Hence, the Constitution does not mention these matters. It doesn't mention police. It doesn't mention schools. It doesn't mention local government. This does not mean that the police, schools and local government do not exist or are 'unconstitutional'. It simply means that they fall within the plenary legislative powers of the States (and before them, the colonies).
If anyone seriously thought that a referendum was necessary for local government to validly exist and that its failure would wipe out local government, don't you think this might have been mentioned in the parliamentary debates over the referendum, or in the Yes/No pamphlets, or in the public debate, or in the newspapers at the time the referendum was held? Go and look for yourself. Have a look at the local newspapers at the time. Where are the comments about what will happen if local government ceases to exist and who will collect the garbage? They are not there, for the reason that neither referendum had anything at all to do with the validity of the existence of local government under State laws.
@@constitutionalclarion1901 Plenary powers or residual legislative powers left to State parliaments?
Yeh sure, police powers relevant for a state’s protection, education and the other subjects you mentioned are residual State powers which are clearly articulated in the Annotated Constitution at page 936.
These residual powers also include local government and municipal institutions which is what a council is i.e. a Municipal Institution which in this country is an incorporated department of the state government, not a constitutionally recognised third tier of government responsible for the maintenance and construction of roads and bridges, sanitary, lighting and the provision of water supply when that resource isn’t privatised.
The object of the 1988 Referendum as explained in the Constitutional Alteration Bill 1988 Explanatory Memorandum which was to “establish and continue a system of local government”.
As outline din the Memorandum, WHY did they see a need to include the word “establish” as if there has been no lawful authority to create it in the first place even though it has existed before, and then also insert the word “continue” just in case councils might be closed down by the States. WHY was there a need by the Parliament to insert these words and require an amendment, a new Section 119(a) to the Constitution of the Australian Commonwealth which obligated each State?
The summary of issues regarding the Constitutional recognition of local government was discussed at the first Constitutional Convention in Sydney in 1973. The 1976 Hobart Convention recognised “the fundamental role of Local Government in Australia” and, amongst other things, invited the States to “consider FORMAL recognition of Local Government in State Constitutions”, see the Constitutional Commission Issues Paper, Committee on the Distribution of Powers, by Professor Colin Howard at page 57.
(Resolution No 18) also on page 57, presented at the Brisbane Convention of 1985 considered and recommended that “each Local Government Body (Council) SHALL have the power to make by-laws for the peace, order and good government of its area to the extent and in accordance with the laws prescribed by the respective Parliaments in that behalf” (Item No. B3).
Again, why did the parliament and the Constitutional Commission choose this particular wording and see the need for alteration to make Local Government at the State level FORMAL?
What is the definition of formal? Formal adjective (OFFICIAL).
This is why concerned people are rightly challenging councils and their purported authority that they claim to have over an individual and their personal property. They can assume councils are not an official authority in the form of a government.
If an informal local government ceases to exist, then a government department with limited authority and power can work in its place to provide a service like government was intended to do.
The constitutional commission and the Parliament seriously thought that a referendum was necessary for local government to validly or formally exist because they put that question to the people and as what outlined in the memorandum I talked about above.
Maybe they were afraid that if electors woke up to the informality of councils pretending to be an official local government with authority and power to do certain things, by having them recognised in the Federal Constitution, then we the people wiping out or opposing the dictates of Councl/local government would be more difficult to do.
The politicians occupying the parliament at the time who were involved in the parliamentary debates over the referendum question etc, would not have cared too much if they could not entrench local government in the Constitution, because they knew they could keep the status quo with the informal local government operating into the future, with the majority of the people none the wiser.
Sydney City Council v Reid, a 1994 case Kirby P found that as a statutory corporation, a local council took on a distinct identity separate from the Crown. In doing so, he relied upon the ruling of the High Court in The Mayor, Aldermen and Citizens of the City of Launceston v Hydro-electric Commission (1959) 100 CLR 654 that
Both in England and in Australia there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless parliament has by express provision given it the character of a servant of the Crown.
My question to you is, if a Council is separate from the Crown, recognised as a Statutory Corporation, then how can it be a government under our Constitutional system of government where the Crown is the source of law and authority?
How can it make By-laws that might apply to non-shareholders of that corporation?
If a council officer issues a penalty notice to a resident, is that penalty notice criminal or civil?
Recently in the USA, the Supreme Court decided that enforcement of civil penalties requires a jury trial.
@@SimonHasBeenMudGuts I had assumed that you lived in Australia, because in 'this country' municipal institutions are not departments of the State and have not been so for over a century. Local government bodies are established by State statutes and have powers conferred upon them, including the power to make by-laws and collect rates. None of this is new or frightening. It's been happening for over a century.
All you have to do is read the terms of the proposed referendums. It's really not hard to understand. The 1974 one would have allowed the Commonwealth to borrow money on behalf of local government and to grant financial assistance to it. It would not have made any difference at all to the status of local government as bodies created by State statutes. It just dealt with giving them money - nothing more and nothing less.
The 1988 one specifically left the establishment and continuance of local government bodies to 'each State'. It referred to 'local government bodies elected in accordance with the laws of the States and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State'. It would have preserved this existing system, but prevented a State from replacing 'elected' local government bodies with non-elected bodies. If you can't understand what the point of this amendment was, it was to prevent sacked councils from being replaced by administrators, or the outright abolition of a system of local government. Voting against the referendum only meant that the existing system, under State law, continued and the Constitution did not provide any protection of local government bodies from being replaced by unelected administrators. Again, this is not hard to understand.
@@constitutionalclarion1901 OK, my bad, so the local councils are statutory corporations operating under an ABN. Where does the States power of delegation come from, to lawfully delegate law making and enforcement power to a corporation and allow it to issue and attempt to enforce penalties on subjects and citizens? Councils are not courts, only courts can issue enforceable civil penalties. This is effectively a breach of the separation of powers doctrine, wouldnt you agree? Regarding the penalty issue and enforcement by Council employees in the State of QLD, if we refer to Australian Admin Law legal principles, this delegated power (delegating a right and power to a body corporate to issue and enforce fine/penalty) would need to be authorised through some type of delegated legislation and a requirement that it be passed through both houses of parliament where it can be scrutinised by committtees. This doesnt happen in QLD because they have a One House Parliament done against the will of the people who voted NO in a State Referendum to disolve the upper house in 1917, but they went and disolved it anyway, in 1922 as you know. Getting back to the Council Body Corporate issued penalty notices, this violation of the separation of powers continues, flying in the face of the Rule of Law and separation of powers doctrine in this country. Why is this violation allowed to continue and ignored by the State of QLD in this case?
I am curious about what the background of this woman is. Is/was she a lawyer or magistrate? If so, I would take salt with a grain of everything she says. They have a vested interest in keeping the status quo.
It says quite clearly on my channel page who I am. I am a Professor Emerita of Constitutional Law. I'm not hard to find on the internet, as I frequently give interviews to the media, write for the newspapers and am quoted often.
When many local governments came out in support of the Voice I saw a lot of comment about the constitutional status of local government. It was good to get some real clarification.
"THE Voice" was none of Local Government's business.
What about the shires ?
Does the use of the expresion "codswallop" indicate that it now has constitutional status? Levity aside a useful contribution.
While it is not expressly used in the Constitution, it is still a good description for some pseudo-constitutional arguments.
Property-based? Yes! In the Newcastle area prior to the "Greater Newcastle Act" of 1938 which saw several suburban councils(Stockton, Wallsend, Carrington, Lambton, etc.) abolished and the Newcastle Council reconstituted to accommodate representatives(referred to as Aldermen, no women were elected back then) from the various suburbs, Minmi, a suburb near Wallsend, was originally owned by coal barons, John and Alexander Brown, they owned the land and the houses and the residents were merely tenants who worked in the J. & A. Brown coal mines. Because the residents were only tenants, Minmi had no suburban council, thus the residents were *disenfranchised!* 1938 changed that situation and Minmi residents finally got a say in civic affairs, also because the property-based law was removed.
From about 6.24 minutes in your video, you make a misleading statement claiming that "people" a term that we can assume covers with a blanket all people who have a copy of that Red Book. All people who have a copy of this Red Book, DO NOT claim that the Red Book is the Constitution. The majority know that it is a book that contains a copy of the Constitution in it and that it is a historical introduction, study and guide that provides analytical, political and legal commentaries on the constitution and its provisions, and is also used by High Court Judges to assist them to interpret constitutional law.
Can you do a live information session? Maybe question and answer? That would be great! …
Since the end of Chevron deference in the US has been in the news, perhaps an interesting topic for a video would be deference in Australian law? Though I understand that would be more administrative than constitutional law.
Yes, it's a bit outside my field. We need an administrative lawyer to create a channel as well. It could be called 'Administrative Adventures' or the 'Administrative Law Advocate'!
Given that the 1855 Victorian Constitution is supported by Section 106 Commonwealth and that the 1855 Act and that every single provision of the Act may be repealed and replaced, but the Act itself must remain as there is no authority to repeal the Act itself. The authority to repeal the entire act, only arrived via the 1986 Australia Act. So where did Victoria get its authority to bring in the 1975 Constitution Act?
First, you need to distinguish between the Victorian Constitution itself and the British Act of which it was a schedule, which authorised Queen Victoria to assent to the Constitution. The history of the Constitution's enactment and the power for its repeal is set out in the preamble to the 1975 Act. You can read it here: www.austlii.edu.au/cgi-bin/viewdb//au/legis/vic/hist_act/ca1975188/.
The 1975 Act was reserved for the Queen's royal assent, due to the application of s 1 of the Australian States Constitution Act 1907 (UK), and that royal assent was given by the Queen on 22 October 1975. You can read more about it in a book by Greg Taylor, 'The Constitution of Victoria' (Federation Press, 2006).
Local councils ought to be operated by the local people.
Councillors are elected by the local community. Who they employ is a matter for them.
@@constitutionalclarion1901 career politicians in the majority.
@@deanosslewis You can only be a career politician if people elect you.
i was told at a constitutional law meeting that if you no longer had a motgage that then you dont have to pay rates , that rates are applied only to a motgaged property , can you confirm
Not as far as I know, but I guess you should check in the relevant State because each has a separate law. I'd be really surprised if this were true, because councils still provide services to land regardless of whether it is mortgaged or not. Your garbage still needs collection, the potholes need to be fixed and the gutters need to remove the stormwater. It sounds to me that someone is telling you a story that they want to be true. I'd be very sceptical about it.
Definitely incorrect.
French island in Vic in a real world example of a 'local government free zone'. It is an unincorporated area.
Matters of land use, planning, roads and parks are directly controlled by the Victorian govt and various govt bodies therein. Some other services are managed by a community association.
Thanks, that's interesting. Yes, there are quite a few gaps in the system in different places.
Never forget that the 1840 Adelaide City Council election was also the worlds first use of proportional representation in a government election. Although this was before secret ballot so it was almost unrecognisable from modern Proportional Representation systems.
Thanks. I'd not looked at the electoral system used then. I do know that Catherine Helen Spence, from South Australia, was very keen on proportional representation and campaigned long and hard for it, but that was later, I believe.
@constitutionalclarion1901 Her father was actually the returning officer of the 1840 election, so she had a good view of it as a child and recounts it in her autobiography as an inspiration. It's amazing how everything is connected sometimes.
@@nicegan8902 Thanks. That's fascinating.
So local Government is a Dep't of State Goverment?
>foreign interference 101
working extremely well in the us atm.
Good important work. Thanks for producing the videos.
Glad you find them useful.
Brilliant and fascinating analysis - as usual! Thank you very much, Professor Twomey!!
Glad you liked it!
So let me get this straight: the local council gets its power because it has been around for a long time? OK, it’s assumed so only because people got organized? It should still be documented to prevent future contention, but it never was. Also, if I were to go off this assertion-it's not written anywhere, so one can only take your word for it, your excuse is merely an interpretation, without documentation to support that it has power, just because it was around for a long time. First nation people were around for longer, can you show me any deeds with signatures? People forget the Commonwealth is not the land, it is the people. To my understanding the meaning of life is to take care of this world for the next generation, as others have done before us. This way, we create a space to live and experience life. Somewhere down the line, things got twisted.
With this logic of local councils being around gives it authority, if my friends and I had a math club that’s been around for a long time, and it was assumed to be followed because we got organized and other people relied on our systems, does that mean we have authority over every other math club because we were around first? Shouldn't there be some form of evidence where the other math clubs agreed to have us as the ruling power? Or do we just assume we are in power because we have been around for a long time, and no one has objected?
The Royal Styles and Titles Act - There was no internet or phones back then so there was contract signature decorum (they stopped teaching things like this), put in place as safe guards against fraud and contracts obtained by force, e.g. (...) three dots or signing V.C. was a way to show you signed it under duress. Signing at the top means that you have read it but do not agree with or "stand under" what is written. If a contract is signed at the bottom, it is assumed that the signer agrees to and upholds what is written. She signed at the top; it was supposed to come to us. Removing us from the crown should have required a referendum, don’t you think? But it still hasn’t come to us for a referendum.
Perhaps watch the video first before commenting. It explains that local government falls within the plenary legislative powers of the States (and before them, the colonies). The source of local government is therefore written - i.e. statute. It doesn't get its power because it has been around for a long time. It gets its power from statutes passed by the State Parliament.
As for the Royal Style and Titles Act - statutes are not contracts. Further, monarchs almost always signify their agreement to documents at the top, rather than the bottom. Have a look at any Letters Patent, Commissions, etc, signed by the monarch. By custom and convention, the signature (known as the royal sign manual) is placed at the top. As a matter of law, however, it does not matter where on the document it is placed. As long as assent is given, that is sufficient.
@@constitutionalclarion1901 Thank you for clearing that up and taking the time to reply, i appreciate your time. Can i ask is it written into the state constitutions?
@@constitutionalclarion1901 Also, may I ask is it not true the states did not exist prior to federation?
@@k4ngk0ng74 New South Wales, Victoria, Queensland, Tasmania, South Australia and Western Australia were all separate colonies prior to federation. At federation, these colonies came together to form one big federal colony, the Commonwealth of Australia, with each of those former separate colonies becoming a State in the new federation. Their laws and Constitutions all continued to exist as State laws and Constitutions, after federation, including any laws about local government.
Section 107 of the Commonwealth Constitution says: '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'.
Most (or perhaps all - I haven't gone back to check) State Constitutions now contain provisions referring to local government, as a consequence of lobbying by local government bodies.
1988 referendum said so people voted .
Watch the video. It explains what people voted on at the 1988 referendum.
Has there been a challenge to local government on a separation of powers basis?
I doubt it, because it has nothing to do with the separation of judicial power from executive and legislative power.
Thank you for explaining it complex concepts that has direct affect to most people very day.
Glad you found it useful.
Thanks so so much for this extremely interesting talk. Being interesting in history I would like to know about the counsellor who actively campaigned against himself - would you happen to know his name?
If you check back through the comments, I gave some information about him to someone else who asked, including the Trove link to the article where he said it.
It exists by acts of state parliaments. Are state parliaments constitutional and can they pass laws?
Yes, the Commonwealth Constitution recognises State Parliaments and Constitutions, and provides for their continued existence. It also continues State laws that existed prior to federation until changed in accordance with the State Constitution (unless the power to make the law has been withdrawn by the Commonwealth Constitution). See sections 106 to 108 of the Commonwealth Constitution.
Thank you for that coda to your presentation. It is both necessary and in need of wide distribution.
There are many intelligent people out there with great knowledge re: Commonwealth of Australia Constitution. Those I and many others listen to and learn from are not foreign interference as you referred to.
How do you know? Yes, there are some people who show their real identity and have legal qualifications and professional experience in the field, like me. But none of them are saying that local government is invalid.
@@constitutionalclarion1901 The myth started as an attempt to stop paying tax - There was a HCA case I think called ' Joose .. '. years ago .
I was alway's under the impression yes you can have state parliament and Council
''They have to volunteer there time ..
A question for the constitution cleric ''are we under the .u.n . ?
Whether local councillors receive allowances or remuneration is a matter for the relevant State legislation to decide.
Australia chose to be a founding member of the United Nations and it has chosen to ratify a number of UN treaties. But this does not make Australia 'under' the UN or subordinate to it.
@@constitutionalclarion1901 .
Thankyou for that imformation..
Qu'2 if you don't mind
Duing the pandemic we saw state gov's making some threats on the un'vd .
Does state law supersede federal law ..
These question's are for my personal reflections.
If a valid Commonwealth law conflicts with a State law, then the Commonwealth law prevails and the State law is inoperative to the extent of the inconsistency (s 109, Commonwealth Constitution). But if the Commonwealth has not enacted a valid law (eg, it doesn't have a head of power, or it breaches some express or implied prohibition in the Constitution), or if the Commonwealth chooses not to enact a law and just leaves the field to the States, or if each jurisdiction has laws but they are not inconsistent, then the State law validly operates.
@@constitutionalclarion1901 thankyou for that info ...
I cannot get my head around states making there own laws outside parliment ..just found out a aboriganal man has to pay for the daughter and the person being billed for not being vaccinated in south Australia ''will the constitution protect them even if they are not in it ?
@@simonellerton1412 I'm afraid I don't know what you mean here. State Constitutions do not usually contain rights. Rights can be included in legislation or limited by it. We elect State Parliaments, and in doing so we choose the people who make laws about rights and other matters. If we don't like what they do, we can vote in someone else at the next election.
It is upsetting when you meet more recent migrants who fall sway to this stuff. Particularly those who have suffered under oppressive and corrupt regimes can (rightfully) be distrustful of governments and authorities. But, to have a functioning democracy, you need some level of trust.
Quite so.
The Trust was broken long ago
How is it not i rang the local court house, waited a long time on the phone listening to their answering service that said the court house is on stolen land that belongs to some tribe , when thay finally answered thay could not help and told me to call legal aid office ,along time on hold again listening to their answering service that said that there office is on stolen land as well ,i don't want to associate with thief's ,why haven't thay been charged ,don't need a very smart detective thay already admit to the crime
😂 you have a great sense of humour mate. Gold
First I have heard of the idea, I clicked in hope it wasn't constitutional LOL. I appreciate the councils etc have done plenty over history but with transport and communication now and plenty of back benchers sitting around in State & Federal govt it would be great if the local govts were shut down.
It all depends whether you're a Sovereign Citizen or not and whether they've taken the Crown out of the Constitution :-)
You can't be a sovereign citizen. You are either a slave or you are free. Stop watching Mockingbird Media. You're psyoped.
Thank you for clearing up some points relating to Local Government BUT as you correctly point out the referendum in 1974 which would have brought in section 96A does seem to conflict with the Local(Financial Assistance) Act 1995 Commonwealth. As you would be aware there is no clause or enhancement of section 128 of the Constitution with respect to what happens if a legislator contradicts a referendum result, which I believe would be a good addition to our Constitution.
On the point of State powers as prescribed on pages 935/6 of the Quick and Garron I believe that the powers are for the purpose of regulation of Municipal institutions and Local government as you correctly pointed out but the key word is "regulated". Regulation is made pursuant to an Act but does not extend to be seen as an Act. I do not see the authority granted to a State legislator via sections 106-108 of the Constitution to convert a Municipal Institution into a third and essential tier of government as for instance section 74A(1) the Constitution Act 1975 Victoria alleges. Of course this brings into play section 16 of the Constitution Act 1975 Victoria where the word "whatsoever" appears as a legislative power, which I believe should have been thrown out at Federation from the Colonial Constitution because it is clear that the States original legislative authority and jurisdiction had been transferred to the Federeal Parliament.
The business component of Local Government does correctly appear in the Competition Consumer Act 2010 section 2BA and part IV as being within the "Cartel Provisions " of the Act.
One also needs to take into account that Local Government has been REGULATED because as the Colonial legislation clearly points out Local Government is a Body Corporate and not a Body Politic.
No - I'm afraid your analysis here is very confused and does not represent the law. For example, Quick & Garran do not use the word 'regulated' regarding municipal institutions, and even if they did, it wouldn't make any difference. While 'regulations' are a form of subordinate legislation, any statute can be used to regulate matters. The states retained their plenary legislative powers, post federation, with the exclusion of the small number of exclusive powers given to the Commonwealth (eg excise). Those plenary powers included the power to legislate with respect to local government.
Question for Anne, off-topic. The ACT Self-Government Act provides neither for a Governor nor for an Administrator. The Chief Minister is elected by the Assembly and laws are enacted by notification. It seems to work well enough. Could a state adopt a similar arrangement? If it did, would that make the Constitution of that state a republican constitution?
The ACT is an interesting experiment - one of the benefits of federalism, as I keep saying. The problem for any State that wants to get rid of its Governor and connection to the King is (a) the Australia Acts 1986 provide for the Governor to be the the monarch's representative in each State - so that would have to be amended, which would require Commonwealth legislation enacted at the request or with the concurrence of all the States; and (b) it would have to amend its own Constitution to facilitate this, which in most States would require a State referendum.
There are also provisions in the Commonwealth Constitution that refer to a State 'Governor'. However, s 110 says that 'The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State'. As long as that was interpreted to include a CEO or administrator that was not a representative of the Crown (and there could always be a contrary implication found by the High Court), then the Commonwealth Constitution would not itself be an impediment.
@@constitutionalclarion1901 Thanks. I knew about s.110 and assumed that a state might get away with vesting the executive power in the Premier (as the German Laender do, under tight constraints); but I had forgotten about the Australia Acts. Practically speaking, then, the states are stuck with their viceroys so long as the Commonwealth remains a constitutional monarchy 😏.
@@galear1 That's probably the case. The point was raised during the negotiation of the Australia Acts that it would prevent a State from taking unilateral action in the future, but no one seemed much to care. I guess the assumption was that if such a change were to be made, it should only occur if also made at the national level.
In theory, of course, the Australia Acts could be amended on this issue, without there also being a change to the Commonwealth Constitution to establish a republic, but it seems unlikely.
wrong wrong wrong wrong.
Really? Exactly how? Everything I said, including setting out the terms of each referendum, is independently verifiable. People can look for themselves and check.
I’ll bite - how is it wrong wrong wrong wrong?
Put up or (please God) shut up.
Well you again Vic. No point telling you anything, you have been shown irrefutable proof over and over, most recently by me regarding the 1988 referendum and how wrong you were. So therefore you know you are. Just be aware you can be sued for damages if someone takes your advice and it results in a financial loss.
How is qld legislation legal if they abolished there upper house
Because there was no entrenched constitutional requirement at the time to have two Houses. Many Parliaments around the world are unicameral.
17:50 onwards is very important, so thankyou for being so blunt.
Funnily enough, I'm often described as blunt!