Basis of Australian Law

Australian Law is the unifying law that has priority over all State laws.  The following discussion shows how that law is defined and shows how it is to be applied.

Note that Australia is a “Commonwealth” of states.  We wrongly think of Australia as a “Nation”, but the Australian Constitution created us a Commonwealth, also known as a Federation of States.  The best parallel in today’s global context is to think of the European Union.  Each of the individual countries is still a separate nation, but they are linked together in a commonwealth.  Similarly the former British colonies were all members of the British Commonwealth of Nations.

The ancient promises by Kings and Queens of England over the past thousand years can be described as the Crown’s Promise to protect the rights, liberties and justice of the people.  When I refer to the Crown Promise that is what I am referring to.

At Federation Australians placed their god-given rights and freedoms into the hands of the Crown of the United Kingdom of Great Britain and Ireland, effectively creating a Trust, by which the Crown is bound to protect and uphold all of those rights and freedoms.  When I refer to the Crown’s Trust that is what I am referring to.

Delivery of the Crown’s Promise and the Crown’s Trust is provided for, at least to some degree, by Australian Law, which law is referred to as the “law of Australia” in the legal case King v Kidman 20 CLR 425 (1915), wherein it is clarified that the judicial power of the Commonwealth is one and indivisible and cannot be divided into separate streams by any legislation enacted by any State or Federal Parliament.

King v Kidman 20 CLR 425 (1915)

QUOTE

“The common law of England was brought to Australia by the first settlers, and remains, as the heritage of all who dwell upon the soil of this continent, in full force and operation, except so far as it has in any portion of the land been modified by a competent Legislature. For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written.”

END QUOTE (emphasis added)

And

QUOTE

There is no power that can be pointed to in the Constitution enabling the Parliament to enact the common law as such, or to modify the common law as such.”

END QUOTE (emphasis added)

The significance of this is that no State law can restrict Commonwealth law, as the King v Kidman finding states, “For State purposes and jurisdiction State laws may provide differently. But they cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written.”

Therefore the “law of Australia”, as defined by the High Court in King v Kidman, is defined by the Australian Constitution, not by State legislation and that State laws “cannot restrict the operation of the Constitution, and whatever it implies is the law of Australia, as much as if it were expressly so written”, and thus it is the Constitution which prescribes what the law of Australia is, including that which is only implied by the Constitution, and thus the law of Australia cannot be changed by state legislation.

All State legislation is subject to the “law of Australia”, found in the Australian Constitution.  That is why all laws in Australia can and should be tested against the Australian Constitution.

There is a belief by some that common law simply means the on-going cumulative collection of judicial decisions in cases as recent as today or yesterday.  This is not the true meaning of Common Law, as we see in the King v Kidman quote.  The Common Law cannot be changed by Parliaments.  New laws being passed by the State or Federal Governments cannot change the Common Law upon which Australia stands.

Common law is a body of historic English law, not an ever changing, ever evolving perception of law based on the increasing body of legal decisions.

The “law of Australia” has as its foundation the indissoluble English Common Law, as attested in King v Kidman cited above. This is consistent with the testimony of the Australian Courts Act 1828, stating that English Law is the law enforced in the courts.

Australian Courts Act 1828 Section XXIV
QUOTE
Provided also, and be it further enacted, That all Laws and Statutes in force within the Realm of England at the Time of the passing of this Act, (not being inconsistent herewith, or with any Charter or Letters Patent, or Order in Council which may be issued in pursuance hereof) shall be applied in the Administration of Justice in the Courts of New South Wales and Van Diemen’s Land respectively
END QUOTE (emphasis added)

Thus old Common Law of England is the foundation of Australian law and common law cannot be modified by any Parliament, because the only “competent Legislature” (see King v Kidman) is the body politic of the Australian people making such change by Referendum, which change the Australian people have not made.

Australian Law, then, is Common Law, and the imperatives of common law cannot be overturned or replaced by statute, either from a State or Federal Parliament. Creation of statutory provisions which empower sanction against a man or woman outside the lawful requirements of common law is an offence to Australian Law, since it violates the very foundation of that law.

Or, put more simply, Australian Law is the old English Common Law, and nothing Australian Governments enact as “laws” can be allowed to damage or diminish that common law.  All State laws that limit or deny your common law rights are illegal, attacking the very basis of Australian Law.

The indissoluble Common Law, an indispensable foundation of the “law of Australia” which prevails over all state legislation, is based upon the Holy Bible, as attested in judgement by Mr Justice Hargraves in 1874 in the case of ex parte Thackeray (1874 13 S.C.R. (N.S.W.) 1 at p.61) quoted below.

Ex parte Thackeray (1874 13 S.C.R. (N.S.W.)

QUOTE

“We, the colonists of New South Wales, ‘bring out with us’ (to adopt the words of Blackstone) this first great common law maxim distinctly handed down by Coke and Blackstone and every other English Judge long before any of our colonies were in legal existence or even thought of, that ‘Christianity is part and parcel of our general laws’; and that all the revealed or divine law, so far as enacted by the Holy Scriptures to be of universal obligation, is part of our colonial law – as clearly explained by Blackstone Vol. 1 pp. 42,43; and Vol. 4 pp. 43-60.”

END QUOTE (emphasis added)

Justice Hargraves’ declaration has not been overturned and stands as a definitive description of the place of the Holy Bible in Australian law.

Common Law and the Holy Bible from which common law springs require that legal action be just, on the basis of an injured party receiving the measured justice, appropriate to the injury.

Lawful limits prescribed in the Holy Bible are based on the concept of “eye for eye, tooth for tooth” (Leviticus 24:20), requiring the existence of an injured party and the prescription of a just penalty fitting the injury sustained.

Leviticus 24:17-22, Holy Bible King James Version

QUOTE

And he that killeth any man shall surely be put to death.

And he that killeth a beast shall make it good; beast for beast.

And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him;

Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again.

And he that killeth a beast, he shall restore it: and he that killeth a man, he shall be put to death.

Ye shall have one manner of law, as well for the stranger, as for one of your own country: for I am the LORD your God.

END QUOTE (emphasis added)

The common law requirement of an injured party stands upon the provisions of the Holy Bible, and stands supreme in “the law of Australia” and “cannot be modified by any Parliament”, as stated in King v Kidman.

Common law requirement of an injured party with a lawful claim against another is codified from the Bible into Imperial Acts in Magna Carta 1297, where it is prescribed that only the damage sustained can be claimed and that claim must be tested by a body of peers of the man accused.

Magna Carta 1297 Statute Clause 14
QUOTE
[14] A Freeman shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; and a Merchant likewise, saving to him his Merchandise; and any other’s villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. And none of the said amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage. Earls and Barons shall not be amerced but by their Peers, and after the manner of the offence.
END QUOTE (emphasis added)

Note that Australian Law has been seriously undermined by many state laws (statutes) which allow for things that are denied under common law.

For example, it is not lawful for a person to be found guilty of an offence and penalised without being tried before a jury.  So every issue of a fine from a police officer, traffic camera or similar process is offensive to Australian Law.

Similarly, local councils do not have lawful right to prescribe charges and penalties upon people, yet they do.  So this is yet another abuse of Australian Law.

What has happened in Australia is that our leaders have decided to pass laws that attack the Australian Constitution, Australian Law, common law and your rights and freedoms.  Your rights and freedoms are not being protected, but are being undermined by modern laws.  Yet those state and federal laws are not lawful, because they attack the Australian Constitution.

Only the Australian public can make any change to the Constitution and a majority of them in all states must agree to any change before it can be made.  Yet politicians and courts have diverged from the Constitution and upheld laws that contradict Australian Law and the Constitution.

It is time to be attentive to what is going on and to reclaim our lawful foundations.  Nothing else is truly lawful.

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