Horse 2927 - Clauses 4-6 Of The Constitution

As with previous posts with regards the Constitution, I shall be referring to the text as currently published by Parliament House. If this thing ever becomes a massive behemoth of a series, I of course realise that Section 127 will have to be dealt with. My intent with this pass through the first 9 clauses is to show in passing that they are implicitly racially discriminatory, as opposed to the deliberately explicit racially discriminatory nature of Section 127 and Section 25 which kind of indicates that something akin to what was Section 127 could be returned through regular non-constitutional legisation.

https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution/preamble

4. Commencement of Act

The Commonwealth shall be established, and the Constitution of the Commonwealth shall take effect, on and after the day so appointed. But the Parliaments of the several colonies may at any time after the passing of this Act make any such laws, to come into operation on the day so appointed, as they might have made if the Constitution had taken effect at the passing of this Act.

Later sections of the Constitution deal with the saving of state laws and what happens in the event that Federal and State laws overlap. Clause 4 of the Constitution is kind of a continuance clause; which states that everything as far as the colonies were concerned, would continue along their merry way even after they had become states. 

Of itself that doesn't seem all that interesting but in inventing the corporate person which was to be the Commonwealth of Australia, the framers looked at the republican system in the United States which was and is a rolling mud slinging match, and places like the Union of Canada and the Confederation of Switzerland. What Australia is, is more like the latter than the former; though it must be said that the states kind of were distrustful of each other before Federation and remain so to this day.

5. Operation of the Constitution and laws

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

I know that this is going to sound trite but there is no right not to follow the law. The Constitution having created the sovereignty of the Commonwealth of Australia, neither leaves room for the sovereignty of the states; nor the sovereignty of First People (which it never acknowledged), nor the sovereignty of individuals. On that last point, the sovereign citizen argument which seems to have cropped up recently as a defence by people to get out of following the law, simply has zero weight at law. How can it? Clause 5 states simply that the "all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth". 

The states which pretty much have plenary jurisdiction within their borders and the power to make laws about literally anything in the case of New South Wales where I live, are still bound by "the laws made by the Parliament of the Commonwealth under the Constitution". There are no get out clauses. There is only one exception but that has to do with naval ships and generally never applies. 

6. Definitions

"The Commonwealth" shall mean the Commonwealth of Australia as established under this Act.

"The States" shall mean such of the colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the northern territory of South Australia, as for the time being are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State."

"Original States" shall mean such States as are parts of the Commonwealth at its establishment.

With regards the application of Mabo v Queensland (1992) and the list of requests in the Uluru Statement From The Heart, Clause 6 is like putting an axe through the head of whatever constitutional claims that First People might have made. In 1900 they were basically deemed not to have existed and so, they aren't mentioned and because they aren't explicitly mentioned, they can not be included in the category of "the States" for the purposes of the allotment of future Senators as "Original States". 

I suspect that the reason why Clause 6 was argued for, had nothing to do with any future claims that First People might have had. In 1900 the immediate concern was to do with Fiji and New Zealand who had rejected the process of Federation but might have wanted to join the Commonwealth of Australia at a later date.

I also suspect that looking at the American experience which had added states like crazy, that the framers of the Australian Constitution didn't want to dilute the representation of the Original States; which is what happened in the United States. An Original State in the US Senate at the time of inception had 1/13th of the seats in the upper house (7.6%9) but that was already well into the 40s by the time of the Federation of Australia in 1900. 1/45 (2.2%)

What's perhaps curious is that I think that the framers of the Australian Constitution fully expected that there would be extra states; perhaps being formed out of parts of other states; but apart from the Northern Territory which looks all the world like a state but isn't one, the Australian Capital Territory which is similar, Jervis Bay Territory which looks like a glorified local council, and the short lived Central Australian Territory, which potentially might become states, the mechanism for statehood has never been triggered.

Clause 6 also lays down a form which a lot of other pieces of legislation have, in that it defines words and how they are to be used within the confines of that particular piece of legislation. In general, words in pieces of legislation have the usual definitions that they do within a normal dictionary (such as the OED or the Macquarie).