DISCUSSION:

Reference: http://www.statusquo.org/aru_html/html/const_safe.html

DISCUSSION:

Unread postby lazerzap » Thu Jan 02, 2014 8:31 pm

So far, this paper has established that:

There has been, from time-to-time, comment on the possibility of the Constitution being changed by processes other than those contained at s128 of the Constitution.

The Constitution forms an integral and, for the moment, an inseparable part of the Commonwealth of Australia Constitution Act.

The principal way of changing the Constitution is by the resource contained at s128 of the Constitution.

At the establishment of the Constitution and up to the introduction of the Australia Act 1986, the United Kingdom Parliament could also have amended the Constitution because it is part of an Act of that Parliament.

The enactment of the Statute of Westminster, 1931 gave the Commonwealth Parliament additional powers to repeal or amend acts of the parliament of the United Kingdom extending to Australia but denied any power to amend or repeal the Constitution or the Constitution Act.

The enactment of the Australia Act 1986 finally confirms the status of the Commonwealth of Australia as a sovereign, independent and federal nation and that the United Kingdom Parliament has 'abandoned' its Constitution Act of 1900 to the Commonwealth and the States for local handling.
The Commonwealth of Australia Constitution Act 1900 (including the Constitution) remains part of our law.[39] Accordingly, and because this act has now been 'abandoned' by its author, the sole responsibility for its future rests entirely with Australia and its institutions. Additionally, the Statute of Westminster, 1931 and the Australia Act 1986 (Cth), as amended and in force from time to time, in so far as they are part of the law of the Commonwealth, of a State or of a Territory, provide additional constitutional nuances for our deliberation.

Assuming the constraints of Section 1 of the Australia Acts remain valid, the United Kingdom can no longer amend the Constitution since the enactment of those Acts. That being the case, does this mean that the United Kingdom's former power to do so has simply been extinguished and that the only way the Constitution can now be changed is through s128 of the Constitution? Or does this mean that the United Kingdom's former power has been inadvertently or covertly transferred to some other authority?

Returning to the Statute of Westminster, 1931, section 8 of that statute leaves the machinery of constitutional amendment exactly as it was before the enactment of the Statute; so 'any [existing] power to repeal or alter' the Commonwealth Constitution or the enveloping Constitution Act survives[40] even though s.2 (2) of the Statute of Westminster authorises the use of Commonwealth legislative power to repeal or amend any such English Act, order, rule or regulation in so far as the same is part of the law of the Dominion.[41] However, both saving provisions (on the Constitution Act with the Constitution, and on the federal division of authority) may be overturned by action under s.15 of the Australia Act.[42]

Section 15 of the Australia Act deals with the method of repeal or amendment of that Act and the Statute of Westminster. That section is divided into three subsections as shown below:

This Act or the Statute of Westminster 1931, as amended and in force from time to time, in so far as it is part of the law of the Commonwealth, of a State or of a Territory, may be repealed or amended by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) below, only in that manner.

For the purposes of subsection (1) above, an Act of the Parliament of the Commonwealth that is repugnant to this Act or the Statute of Westminster 1931, as amended and in force from time to time, or to any provision of this Act or of that Statute as so amended and in force, shall, to the extent of the repugnancy, be deemed an Act to repeal or amend the Act, Statute or provision to which it is repugnant.

Nothing in subsection (1) above limits or prevents the exercise by the Parliament of the Commonwealth of any powers that may be conferred upon that Parliament by any alteration to the Constitution of the Commonwealth made in accordance with section 128 of the Constitution of the Commonwealth after the commencement of this Act.
Put simply, the Australia Act and what remains of the Statute of Westminster 1931 can be repealed or amended only by:

a Federal Act which has the concurrence of all the State Parliaments, or

alteration to the Constitution, under section 128, conferring power on the Commonwealth.[43]
The third subsection mitigates the threatened rigidity, by specifying another method of amending or repealing the provisions of the Statute of Westminster or the Australia Act.[44] The correct view of section 15 (3) is that it not only qualifies the exclusiveness of section 15 (1), but also positively allows a subsequent alteration under section 128 [of the Constitution] to enable Parliament to do any of the things that can be done by the alternative procedure under section 15 (1) read with section 15 (2).[45]

Because the application of subsection 3 calls on the people of Australia for approval to amend or repeal the Statute of Westminster and/or The Australia Act in accordance with the provisions of s 128 of the Constitution, it needs no further discussion at this time.

Subsection 2 of section 15 of the Australia Act is, in effect, a definition section.[46] We can ignore this subsection because it is a technical legal instruction to the courts about the way they should handle a federal statute which tries to do something contrary to the Statute of Westminster or the Australia Act.[47]

Accordingly, it is no longer necessary to consider subsections 2 and 3 of section 15 of the Australia Act for the purposes of this paper. That said, we now consider s15 (1) of both the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) in turn.
User avatar
lazerzap
Site Admin
 
Posts: 270
Joined: Wed May 20, 2009 6:41 am
Location: Donald, 3840 Victoria. Australia

Return to Is our Constitution Safe?



Who is online

Users browsing this forum: No registered users and 1 guest

cron