Last updated: 21 May 2026.

I. The Myth

Public discussion about the legitimacy of local councils in Australia has become increasingly prominent in online spaces where discussions of the Australian Constitution often misinterpreted and misrepresented it. One recurring claim is that because the Australian Constitution Act only outlines the responsibilities of the Commonwealth and the State governments, any additional tier of government is therefore unconstitutional.

This view is often reinforced by the mistaken belief that the failure of past referendums to recognise local government in the Australian Constitution means that councils lack lawful authority, and therefore council rates are unconstitutional and unenforceable. These arguments are Ill-informed and have no foundation in law, yet despite this, they continue to circulate, and their influence has led some individuals to refuse to pay rates, resulting in significant financial loss.

The purpose of this article is to explain the legal basis on which local councils derive their authority, and to demonstrate why that authority is valid within the Australian legal framework. The aim is to provide a clear and reliable account for readers encountering these claims and to address the misconceptions that give them superficial appeal.

II. The Three Categories of Constitutional Legislative Power

In any discussion of the Australian Constitution, government power is commonly described as being derived from one of three principal categories of law-making authority:

Exclusive powers are those that only the Commonwealth Parliament may exercise, typically in areas where national uniformity is essential, such as: Defence: sections 51(vi) and 114; Coinage and Currency: section 51 (xii); and Customs and Excise: section 90. These powers are expressly assigned to the Commonwealth and are unavailable to the States.

Concurrent powers are those shared between the Commonwealth and the States. Both levels of government may legislate in these areas, although section 109 of the Constitution provides that Commonwealth law prevails to the extent of any inconsistency. Many of the powers listed in section 51, including: Banking and Insurance: sections 51(xiii) and (xiv); Taxation: section 51(ii); and External Affairs/Trade: sections 51(i) and (xxix); fall within this category. These reflect matters where both national coordination and local regulation are appropriate.

Residual powers are those not assigned to the Commonwealth and therefore were retained exclusively by the colonial parliaments, which became the States upon Federation. These powers include matters traditionally managed at the local level, such as criminal law, health administration, and education. Because these powers were never ceded at Federation, they continue to form the core of State legislative authority.

Although the creation of councils can be characterised as a matter within the States’ residual powers, that is not the source of their authority to establish them. That authority derives from the States’ plenary legislative power inherited from when the States were colonial parliaments.

Colonial case law established that colonial parliaments possessed full and sovereign legislative capacity, including the ability to create elected local government bodies and to confer law-making powers upon them.

III. The Plenary Powers of the States

A. What “plenary power” means
Prior to Federation, a trilogy of cases decided by the Privy Council ruled that, when not subject to a specific restriction, the powers of all colonial Parliaments were as “plenary and ample” as powers of the British Parliament.

In this context, plenary power refers to a complete and comprehensive law-making authority, equivalent in scope to that which is exercised by the Imperial Parliament – except where expressly restricted.

Plenary power includes the capacity to create new institutions, to confer law-making authority upon them, and to regulate matters within the territory of the colony. This was the legal foundation upon which colonial parliaments established municipal bodies and empowered them to make by-laws.

These powers did not disappear at Federation. As the colonies became States, their existing legislative powers continued, which allowed the ongoing exercise of all powers previously held.

B. The trilogy of Privy Council cases

The following decisions by the Privy Council established the scope of colonial plenary power:

C. Who is the Privy Council and why are their decisions hallowed?

The Privy Council, formally known as His Majesty’s Most Honourable Privy Council, is one of the oldest institutions of the British constitutional system. Through its Judicial Committee, it served as the final court of appeal for much of the British Empire, including Australia.

Before Australia became fully judicially independent, appeals could be taken from colonial courts, State Supreme Courts, and even the High Court, and decisions of the Privy Council were binding on Australian courts.

This arrangement was preserved at Federation through section 74 of the Constitution, which allowed certain appeals to continue. Over time, Australia progressively abolished these appeal rights: first in 1968 for federal matters, then in 1975 for appeals from the High Court, and finally through the Australia Act 1986, which ended all remaining appeals from State courts.

Although Privy Council decisions are no longer binding in Australia, their earlier rulings remain historically significant. They shaped the legal principles inherited at Federation, including the doctrine of plenary legislative power, and they continue to be cited for their explanatory value.

D. Continuity after Federation

Section 107 of the Australian Constitution ensured that the plenary powers exercised by the colonial parliaments continued when they became State parliaments after Federation. This included the authority to create, regulate, and empower local councils. State Local Government Acts are accordingly a valid exercise of State legislative power.

107. Saving of power of State Parliaments.

Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

E. High Court affirmation

The High Court of Australia unanimously affirmed the principle of plenary legislative power in Union Steamship Co of Australia Pty Ltd v King (1988). The Court confirmed that State Parliaments possess broad authority to legislate for the “peace, welfare and good government” of their State, subject only to constitutional limitations, and held that this power extends to any subject matter whatsoever, even if the resulting law appears harsh, unreasonable, or contrary to fundamental common law principles.

IV. Referendums and Local Government

Although it is sometimes claimed that Australians have twice rejected the existence of local government through failed referendums in 1974 and 1988, neither referendum proposal asked the public whether local councils could exist. One referendum concerned direct Commonwealth funding of local government, and the other concerned constitutional recognition of local government.

Understanding what these proposals actually sought to change is essential to understanding why their failure has no bearing on the validity of State created local councils.

The 1974 referendum sought to allow the Commonwealth to fund local governments directly. The failure of this referendum left the existing section 96 funding arrangements in place, with the Commonwealth providing funds to the States, which in turn allocate them to local councils.

The 1988 referendum proposed inserting a new section 119A into the Constitution, which would have required each State to have, and maintain, a system of local government. The failure of this referendum did not affect the validity of councils, it simply meant the Australian Constitution could not mandate their existence.

The legality of councils does not depend on constitutional recognition. Local councils have operated in Australia since 1840, when the first was established in Adelaide.

Councils exist because State government legislation creates them, and only State parliaments can alter or abolish them.

V. Consequences of Believing the Myth

The myth that councils are unlawful leads some individuals to assume that council rates must also be invalid. This belief can be especially appealing to those who regard rates as intrinsically unfair, because the need to keep paying a third party in order to retain ownership of property raises a genuine question about whether one truly owns their property at all.

That sense of injustice can make people more willing to accept claims that appear to confirm their reasoned objections. However, the perception that rates are unfair does not affect the lawfulness of councils or the validity of their charges. Refusing to pay rates does not invalidate the debt, it simply triggers the statutory recovery process.

State legislation gives councils clear authority to impose rates, charge interest, commence legal proceedings, obtain judgement, and enforce payment — and courts consistently uphold these powers.

Individuals who rely on legal misinformation therefore expose themselves to escalating financial consequences, including interest payments, legal costs, and in serious cases, the forced sale of their homes.

VI. Case Study: Misunderstanding the Constitution in Practice —
Glew v Shire of Greenough

Wayne Glew, an ex police officer and prominent figure in online “sovereign citizen” communities, has long asserted that various changes have been made to the Australian Constitution without the necessary public approval. However these claims are unfounded.

Glew has also argued that the Western Australian Government and its courts are unconstitutional and therefore lack the authority to impose or enforce council rates. The Supreme Court of Western Australia has rejected these arguments as having no basis in law, and subsequent appeals from Glew have been dismissed.

Glew’s refusal to recognise the legitimacy of State authority resulted in enforcement action and ultimately the loss of his home. Because of his former career in law enforcement and the confident manner in which he presents his views, many people have been persuaded to accept his claims as credible, but in reality, his claims are legally baseless.

This case illustrates how the spread of pseudo-legal misinformation about the Constitution and local government can expose individuals to severe legal and financial consequences.

VII. Conclusion

Local councils in Australia are lawfully created under State legislation, and their status as valid public authorities has been repeatedly confirmed by the courts. Their authority derives from the plenary powers of the colonial Parliaments preserved at Federation. The Constitution’s silence on councils does not undermine their authority, it simply reflects that councils are a matter for the States.

The trilogy of Privy Council cases, affirmed by the High Court, confirms that State parliaments possess complete legislative power to create and regulate local councils. The failure of referendums to recognise councils at the Commonwealth level does not affect this authority.

There is a risk of real-world harm caused when people act on misinformation that claims otherwise. Council rates are valid and enforceable, and assertions to the contrary are as ill-informed as they are dangerous.

Any meaningful debate about local councils should concentrate on policy, fairness, efficiency, and accountability, rather than any unfounded claims about constitutional invalidity.

The aim of this essay has been to provide clarity in order to protect individuals from potential harm, while promoting a proper understanding of Australia’s constitutional system.

1974 referendum 1988 referendum Australian Constitution Act Council rates are lawful Glew v Shire of Greenough Government legislative power Hodge v The Queen Plenary power Powell v Apollo Candle Company R v Burah s 107 Saving of power of State Parliaments the Privy Council