The Australian Constitution does not deal with United Nations inspired agreements that cede our sovereignty to foreign courts and foreign governments. I do not think our founding fathers saw this level of treason coming. There is one series of provisions however that renders agreements such as the TPP-11 unconstitutional. These are the clauses that set out the rules for Courts of Law, and specifically who is empowered to pass judgement on the Australian Government. As you will see, the intent is clear - the judges must be appointed by the Queen, not foreign corporations.

Constitution of the Commonwealth of Australia

71. The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction...

Only Parliament can create a Court so the Government must have all treaties that create courts ratified by Parliament. The Waterside Workers case clearly stated the Court must be duly constituted (sometimes called a Chapter 111 court). The Kangaroo Court in the ISDS is not a duly constituted Court.

72. The Justices of the High Court and of the other courts created by the Parliament--

(i.) Shall be appointed by the Governor-General in Council:  

Justices must be appointed by the Governor General, not the multinationals. Again this has been strongly defended by the High Court in the Wheat and Waterside Workers cases.

A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. 

this basically says that if it looks like a Court and smells like a Court - it is a Court and 72(i) applies - see the Waterside Workers case for a very strong defence of this section.

75. In all matters--

(i.) Arising under any treaty:

(ii.) Affecting consuls or other representatives of other countries:

(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

(iv.) Between States, or between residents of different States, or between a State and a resident of another State:

(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction. 

-If you want to sue the Australian Government, including in respect of treaties then the High Court has that jurisdiction that cannot be given away by the Parliament. 

 

77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws--

(i.) Defining the jurisdiction of any federal court other than the High Court: 

- the Parliament cannot interfere with the rights granted to the High Court under Section 75

78. The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

This is generally read as being subject to the limits set in Section 75, but we should look at Legal Precedent on this issue:

ref: http://www.aph.gov.au/~/~/~/link.aspx?_id=1A4B10F0E0C645D68D16DC6953E7CE52&_z=z or read the whole thing: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/

OK so lets look at some relevant High Court Precedent

BLOG COMMENTS POWERED BY DISQUS