The Victorian Constitution has a history spanning back 167 years. There are many unanswered questions about the 1854 / 1855 Constitution. We will now look at how it was created, Why it was repealed and if the power existed in 1975 to repeal it.
In March 1854 a Bill entitled "An Act to establish a Constitution in and for the Colony of Victoria" was created to substitute the stand alone Legislative Council with a Legislative Assembly and Council. this Bill was reserved for Her Majesty's approval and sent to Britain for Royal Assent. It was amended and finally passed on the 18th July 1855 as an Act of the Imperial Parliament.
So why was the original Bill amended once it reached Britain? Could the colonists of Victoria stepped beyond their scope of power prior to federation or is this overstep of power purely unique to the current Parliament?
The main amendment we will focus on is the amendment of section LX of the 1854 reserved Bill, and what was finally enacted in 1855.
Let's look at section LX of the 1854 Bill as originally drafted, it provides the following in respect of pensions.
Now lets compare the 1855 amended version after its return from Britain and the UK Parliament.
So the Legislature of Victoria can repeal, alter or vary ALL or any of the provisions of the 1855 Constitution. So every single provision of the Act maybe repealed and replaced, but the Act itself must remain as there is no authority to repeal the Act itself.
Now let's look at the 1900 Commonwealth Constitution, specifically section 106 in respect of the States Constitution.
What does s106 tell us?
The State Constitution shall, subject to the Constitution, continue at Federation.
Until the State Constitution is ALTERED in accordance with the State's Constitution.
So the Constitution of the Commonwealth provides the States Constitution must continue (from the colony), and it only provides authority to ALTER the States Constitution, in accordance with its provisions. In summary section LX on the subject of alteration of the 1855 Constitution is consistent and therefore meets the requirement of section 106 to be subject to Constitutional requirements, Both again only providing for alteration and not repeal.
So what happened in 1975? The Victorian Government repealed the Imperial Constitution of 1854 /1855, did the Victorian Parliament possess a power to repeal such a constitution in 1975? As we see above the Constitution of the State and the Commonwealth Constitution only provide for alteration and not repeal. The States first prohibition of repeal.
Did the State of Victoria possess a power to repeal an Imperial Act in 1975? Let's look at the Commonwealth's Constitutional milestones for the answer.
The final milestone below from 1986 after allegedly attaining independence from the United Kingdom, clearly tells us from 1986 the States now had the power to repeal or amend any UK legislation extending to them. The power to repeal the Victorian Constitution 1855 was clearly unavailable at the time of repeal in 1975 when Victoria enacted its modern Constitution.
Below is the Schedule from the 1975 Constitution as enacted, repealing the 1854 /1855 Constitution Act
beyond the power of the Parliament. This Schedule has now been repealed to hide this act beyond power.
SOURCE ~ Schedule of the Constitution Act 1975 below, as enacted.
So with all the facts now at hand, we have just one last question to ponder of the Parliaments actions to repeal the original State Constitution beyond the power of the State of Victoria, if no power could be relied upon for the repeal in 1975, is the 1855 Victorian Constitution current valid law today?
1854 Bill of the Victorian Legislature.1854 CONSTITUTION
1855 Victorian Imperial Constitution.vic5_doc_1855
1855 Gazette Proclamation of Victorian Governor.1855 CONSTITUTION
1975 Victorian Constitution as enacted.Original Constitution act 1975
A Brief Summary.
If you can spare a few dollars for the creators of this website to continue their research to bring you more great content, any amount, no matter how great or small, would be greatly appreciated.