Documenting Constitutional changes by the Victorian Parliament and the Governors from 1901 without conducting a Referendum. Forward This document has been prepared with just 3 questions for the High Court of Australia to answer as Inter Se arguments namely questions of law between Commonwealth and State Laws including Constitution Acts. Also conclusive evidence to highlight the behaviours of the State, Territory and Commonwealth Parliaments regarding constitutional changes of the State of Victoria made without referendums are presented within the pages of the document. Questions formed from the basis of the Evidence presented within document. Question 1. Is a State or Territory Parliament permitted to change any part of, or create or repeal their original constitution Act or a lawfully consented Constitution Act Amendment Act under Section 106 Commonwealth Constitution without conducting a referendum as per Section 128 of the Commonwealth Constitution Act from 1st January 1901 states? Question 2. Is a State or Territory Parliament permitted to create another form of Government namely Local Government within their original Constitutions as per their powers under Sections 106, 107 &108 of the Commonwealth Constitution Act without conducting a Referendum as per Section 128 of the Commonwealth Constitution Act from 1st January 1901? Question 3. Is the Commonwealth Parliament under their limited powers within Section 51 & 52 Commonwealth Constitution; and/or any State and Territory Parliaments under their limited powers within Section 106, 107 & 108 of the Commonwealth Constitution Act permitted to amend the correct UK Seal and the correct wording to the enactment of all Acts of Parliament including the Constitution Acts from His/Her Most Excellent Majesty to The Queen or The Parliament of Australia or The Parliament of namely “Victoria” or any State or Territory, inclusive of “the Legislature of NSW enacts as follows” without conducting a Referendum? How to read this document. This document is presented with the following; Questions 1 and 2. Parliamentary Hansard quotes from 1890 to 1899 and numerous Page 3 to Page 45 High Court cases outlining that a State must conform to the Commonwealth Constitution Act as per Sections 106 to 108. Including; Question 3. The Changing of Enactments and Seals Page 28 to Page 45 List of Constitutional Changes without any referendums. Page 124 to Page 149 A list Constitutional changes by the Victorian Parliament and Governors after 1st January 1901 to 30th June 2013 all assented (consented) without a Referendum to the 1855 original Constitution for the Colony of Victoria [Victoria Constitution Act 1855 (UK) and (PDF) link from Documenting Democracy (Founding.docs.gov.au)] and the Constitution Act Amendment Act 1890. All Parliaments of the Colonies who agreed to become State Parliaments from 1901 were required to put a Referendum process into their original Constitutions and therefore from 1901 were restricted on changing, creating, or repealing (removing) any Constitution Act without conducting a Referendum as per Section 128 states for any change to the Commonwealth Constitution Act 1901. From my research NO Colony Parliament that agreed to become a STATE Parliament as per covering Clause 6 conformed to the Commonwealth Constitution by inserting a Referendum process as required from 1st January 1901. 1. A Colonies Constitution such as the Colony of Victoria 1855 Constitution Act under Section 60 could be amended from the 1855 Constitution Act as long as it did not breach a law of England and was consented to by Queen Victoria and the UK Parliament, then it was a lawful change. The Constitution Act Amendment Act 1890 No. 1075 assented 10-07-1890. This Constitution contains a section that re-affirms “No tax on private property namely aiding Estate or Grant in Fee Simple. Section 132 of The Constitution Act Amendment Act 1890 stating an extended meaning of Section 15 of the original 1855 Constitution Act. Section 132 “No public or parliamentary tax nor any municipal or borough rate or other rate or assessment (valuations) shall (must) be deemed to be any charge payable out of or in respect of any lands or tenements within the meaning of this Act.” The Colony of Victoria has breached Section 15 of the original Constitution Act 1855 [“No public Tax, Rate or Charge shall be deemed to be any Charge or Incumbrance on Lands within the meaning of this Act.”]; since approximately 1863 under the Municipal Corporations Act. 2. Section 60 Constitution Act 1855 “LX. The Legislature of Victoria, as constituted by this Act, shall have full Power and Authority from Time to Time, by any Act or Acts, to repeal, alter, or vary all or any of the Provisions of this Act, and to substitute others in lieu thereof: Provided, that it shall not be lawful to present to the Governor of said Colony for Her Majesty’s Assent any Bill by which an Alteration in the Constitution of the said Legislative Council, or Legislative Assembly, or in the said Schedule hereunto annexed marked D., may be made, unless the Second and Third Readings of such Bill shall have been passed with the Concurrence of an absolute Majority of the whole Number of the Members of the Legislative Council and of the Legislative Assembly respectively : Provided also, that every Bill which shall be so passed shall be reserved for the Signification of Her Majesty’s Pleasure thereon. 3. Parliament Convention Debates on the creation of the Commonwealth of Australia Constitution Act 1900 UK. Wednesday 18-03-1891. Page 15 official Hansard Debates: Dr Cockburn: Quote “At present we cannot change our constitutions without reference to the Imperial Government.” End Quote (Relevant part pertaining to the Constitutions of the Colonies) 4. Official Hansard Wednesday 18-03-1891. Constitution Convention Debates: Page 13: Sir George Grey: Quote “I beg to propose that the following resolution stand as resolution No. 5:- The inhabitants of each of the states of federated Australasia ought to be allowed to choose, and if they see fit from time to time to vary, the form of state government under which they desire to live. Provision should therefore be made in the federal constitution which will [start page 478] enable the people of each state to adopt by the vote of the majority of voters, their own form of state constitution. End Quote. 5. Official Hansard Friday 6-3-1891 Constitution Convention Debates by Mr. Thynne: Quote: Page 14 “The constitution of this federation will not be charged with the duty of resisting privileged classes, for the whole power will be vested in the people themselves. They are the complete legislative power of the whole of these colonies, and they shall be so. From [start page 106] them will rise, first of all, the federal constitution which we are proposing to establish, and in the next place will come the legislative powers of the several colonies. The people will be the authority above and beyond the separate legislatures, and the royal prerogative exercised, in their interest and for their benefit, by the advice of their ministers will be practically vested in them. They will exercise the sovereignty of the states, they will be charged with the full power and dignity of the state, and it is from them that we must seek the giving to each of those bodies that will be in existence concurrently the necessary powers for their proper management and existence. Each assembly, each legislature, whether state or federal existing under this constitution, will be as Dicey again says-a merely subordinate law-making body whose laws will be valid, whilst within the authority conferred upon it by the constitution, but invalid and unconstitutional if they go beyond the limits of such authority. End Quote 6. Official Hansard Friday 6-3-1891 Constitution Convention Debates by Mr. Thynne: Further Quote: Page 15 “I think these resolutions would be much embellished and improved did they contain a provision which would establish the right of the people of the colonies to pass not only the proposed constitution, but to have all future amendments of it submitted to their direct vote for approval. That is a thoroughly democratic system, by which the people are guarded against hasty and ill-considered changes of the constitution; and the suggestion which I make is one which, I think, might fairly receive from gentlemen who will follow me a little consideration. It has already been suggested that the introduction of the referendum would be a very useful thing. I am not now prepared to fully discuss that question. It would take me a long time to elaborate it; but I do think that, whether we do or do not at any future time introduce the referendum, as in Switzerland, in its application to all legislation, we may very well, and with great advantage, adopt that particular portion of it which deals with constitution changes. It is in accordance with the theory which I put forward, of the people being the great power-really the sovereign power-in these states that, before the Crown is asked to give its assent to any legislation making changes in the Constitution, the people themselves should be asked to give their sanction to it. End Quote 7. Dr Cockburn: Tuesday 10-03-1891 Official Hansard Convention Debates: Quote “All our experience hitherto has been under the condition of parliamentary sovereignty. Parliament has been the supreme body. But when we embark on federation we throw parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are not only legislative, but constituent bodies. They have not only the power of legislation, but the power of amending their constitutions. That must disappear at once on the abolition of parliamentary sovereignty.” “No parliament under a federation can be a constituent body; it will cease to have the power of changing its constitution at its own will. Again, instead of parliament being supreme, the parliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in one body.” End Quote.
Posted on: Mon, 30 Sep 2013 01:04:00 +0000
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