Friday, 19 September 2008

Ultra vires, meaning: Warringah drop dog poo on our Federal Constitution

Manly Daily Article ~~ Barking Mad Media Release (delayed, went sailing & have a Newcastle event Sunday) ~~ Ultra vires definition
Wow, this is hard. How do I explain to you why this lower court judgment favouring Warringah Council is but a drop of water in a bucket, on the wrong field, on the wrong issue? (Trying not to use military analogies...). How do I explain it is yet another example of small-government-syndrome which implies a right to act independently of the principles of our federation?

How to I explain to anyone new to Barking Mad that we are not about dogs or pets, but about our access as pet-owners to a fair-share of public and living space? (Or how CUTE that photo of Pema is...)

And, how do I explain our federal Constitution? (Big sigh). Or how our signing of an international treaty, in this case the International Covenant on Civil and Political Rights (ICCPR) gives regulatory power to the Federal government OVER State government, when generally, our Constitution is prohibited from such power?
Attempt #1:
  • When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (Section 109 Inconsistency of laws).
  • So, let's take that as an admission that this inconsistency can and does exist. When it does, it's not OK for Warringah Council to act beyond the power of their authority.
  • Because, as stated in the first point, the Commonwealth law prevails.

What is this Commonwealth law that we accuse Warringah Council of shitting upon? In addition to our implied right to political expression, we have ratified the International Covenant on Civil and Political Rights (ICCPR), which includes Article 21:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

Well, our assembly never interfered with these conditions, nor did Warringah argue that we did. (Probably because they don't see Constitutional law applicable to their small-government-syndrome).

In summary we won. After 18 months of winning cases assisting our members in 'baby courts', we finally have one we can appeal to a jurisdiction that sets precedent. As this is a constitutional issue, we are looking at our options in the higher courts. NOW WE ARE BARKING UP THE RIGHT TREE. Thank you Warringah. We are THRILLED you read our website and blog and look forward to working with you from the same side of the table.

(PS: Our newly elected Warringah Councillors will table a Notice of Motion for equitable access to off leash walking areas and beaches at the first meeting of Council in late October.)