"pedro" <pedro@no-spam> wrote in message
news:3F0407B1.5353A9B5@no-spam
> Is there any right to demand (get) a refund for something purchased at a
> swapmeet if it doesn't work? (or doesn't work as it's supposed to)
You have a right to demand, you have no right to receive.
>
> Thanks,
>
> Pete.
> -----
--
"We huddled 'em up. We made them squat down... I poured four clips
into the dinks...the mothers kept hugging their children...we kept on
firing..."
- Paul Meadlo
United States Army commenting on US War crimes at My Lai
a situation for www.masterletterwriter.com ?
"=> Vox Populi ©" <vox@no-spam> wrote in message
news:_U4Na.139$M44.72411@no-spam
>
> "pedro" <pedro@no-spam> wrote in message
> news:3F0407B1.5353A9B5@no-spam
> > Is there any right to demand (get) a refund for something purchased at a
> > swapmeet if it doesn't work? (or doesn't work as it's supposed to)
>
> You have a right to demand, you have no right to receive.
>
>
> >
> > Thanks,
> >
> > Pete.
> > -----
>
> --
> "We huddled 'em up. We made them squat down... I poured four clips
> into the dinks...the mothers kept hugging their children...we kept on
> firing..."
>
> - Paul Meadlo
> United States Army commenting on US War crimes at My Lai
>
>
"B" <nospamblam@no-spam> wrote in message
news:bxINa.158838$_w.7281633@no-spam
> a situation for www.masterletterwriter.com ?
>
How about a situation for you to stop posting your annoying, worthless spam?
"Vaughan Williams" <ender@no-spam> wrote in message
news:3f0a8a3d$0$391@no-spam
>
> "Falkon" <falkon@no-spam> wrote in message
> news:bed6a7$2p6$1@no-spam
> > The first line of my statement defined the situation - surely your
> attention
> > span can get you past the first line.
> > I also said that if it is a dealer/trader selling at swapmeet then the
> state
> > FTAs will apply (but the TPA still won't apply unless the dealer/trader
is
> a
> > trading corporation or it is located in a territory).
> > If it is just an individual selling some his/her second hand parts at a
> > stall then the FTAs won't apply.
>
> Just because its an individual, if theyre holding a stall that could still
> be 'in trade or commerce'
>
>
True - but it really depends on the nature of the selling that the person
with the stall is engaged in. If the person is regularly purchasing goods
(new or second hand) and then reselling them, then the 'in trade or
commerce' requirement is likely to be satisfied. However, the more
infrequent the selling, the less likely it is to be conduct engaged 'in
trade or commerce'.
"The mere use, by a person not acting in the course of carrying on a
business, of facilities commonly employed in commercial transactions, cannot
transform a dealing which lacks any business character into something done
in trade or commerce": O'BRIEN v SMOLONOGOV 53 ALR 107 at 114.
--
Falkon
"Tony Smith" <tony@no-spam> wrote in message
news:newscache$7n0rhh$nk9$1@no-spam
>
> "Falkon" <falkon@no-spam> wrote in message
> news:beemkh$ddo$1@no-spam
> > "The mere use, by a person not acting in the course of carrying on a
> > business, of facilities commonly employed in commercial transactions,
> cannot
> > transform a dealing which lacks any business character into something
done
> > in trade or commerce": O'BRIEN v SMOLONOGOV 53 ALR 107 at 114.
> > --
> Which is just fine as far as it goes, and maintaining a clear focus on the
> fact that this case turned on s53 of the TPA and whether or not the
> activities of the defendants (at first instance) fell within its ambit.
>
> It says nothing about liability under the various State fair trading acts
> which are of course specifically aimed at the behaviour of individuals and
> are thus more likely to fall upon the compass of activities undertaken at
a
> "swapmeet".
>
> In that second context Hope v. Bathurst City Council (1980) 144 CLR 1 (a
> decision of the high court) provides a better, and much wider view of what
> characterises a business or commercial operation.
>
> Tony Smith
>
Except that for the term 'in trade or commerce', corresponding provisions in
the State and Territory fair trading legislation are given a similar
interpretation to the provisions of the Commonwealth Trade Practices Act:
Plimer v Roberts (1997) 80 FCR 303; 150 ALR 235 at 237.
"It was pointed out in Concrete Constructions (NSW) Pty Ltd v Nelson (1990)
169 CLR 594; at 602; 92 ALR 193, that as s 52 of the Trade Practices Act
1974 (Cth) draws its power from s 51 (i) of the Australian Constitution, in
which the expression "Trade and commerce" appears, s 52 should be given a
meaning consonant with that head of legislative power. Because the
provisions of the Fair Trading Act so closely mirror the provisions of the
Trade Practices Act, s 42 of the Fair Trading Act should be given a similar
interpretation, subject to any contrary legislative intention which has been
expressed."
But like I said earlier (taken from Davies J at 238) there is no definitive
definition and it really depends on the nature of the activities of the
trader.
The courts would look at regularity, scale of activities and possibly
whether the goods are new or second hand.
--
Falkon
Tony Smith wrote:
>
> > "It was pointed out in Concrete Constructions (NSW) Pty Ltd v Nelson
> (1990)
> > 169 CLR 594; at 602; 92 ALR 193, that as s 52 of the Trade Practices Act
> > 1974 (Cth) draws its power from s 51 (i) of the Australian Constitution,
> in
> > which the expression "Trade and commerce" appears, s 52 should be given a
> > meaning consonant with that head of legislative power. Because the
> > provisions of the Fair Trading Act so closely mirror the provisions of the
> > Trade Practices Act, s 42 of the Fair Trading Act should be given a
> similar
> > interpretation, subject to any contrary legislative intention which has
> been
> > expressed."
>
> This is a separate discussion, but highlights the danger of judges (even HC
> ones) saying, by way of obiter, silly things that they haven't researched
> properly.
>
> The fundamental difference between a State government and the Cwth is that
> whilst the Cwth is limited in its powers by the terms of the constitution,
> States have plenary powers, subject only to the 'peace, order and good
> government' restraint.
Actually no, that is not so. States are as bound by the constitution
and federal law as is the federal government.
> That the States needed to legislate in the area at all is good authority
> that any legislation passed by the State is in no way limited in its
> application to no more than the "parent" cwth legislation.
State legislation is limited to within the borders of that state as
s51 (i) of the constitution makes clear. Federal legislation applies
cross borders as well as within a state.
> To say that a piece of State legislation is limited in its application to
> that of a piece of Cwth legislation purely because of the use of similar
> terms is a very silly thing for a senior jurist to say, and quite
> inaccurate.
>
> An apex court may decide of public policy (for example) to construe the
> terms of a piece of State legislation in such a way, but I think they would
> do it very carefully and a more appropriate way would be for the States to
> legislate on the issue if that is in fact what was intended.
The state laws are mirroring legislation and is therefor intended to
have the meanings of the federal Laws. I suspect this mirroring of
legislation is necessarily so state jurisdictions can deal with such
as well.
"Seppo Renfors" <Renfors@no-spam> wrote in message
news:3F0D09BC.1AEF666B@no-spam
>
>
> > The fundamental difference between a State government and the Cwth is
that
> > whilst the Cwth is limited in its powers by the terms of the
constitution,
> > States have plenary powers, subject only to the 'peace, order and good
> > government' restraint.
>
> Actually no, that is not so. States are as bound by the constitution
> and federal law as is the federal government.
The first sentence is drivel. The second is true, but its not clear how it
relates to the point under discussion.
> > That the States needed to legislate in the area at all is good authority
> > that any legislation passed by the State is in no way limited in its
> > application to no more than the "parent" cwth legislation.
Zacly.
Tony Smith wrote:
>
> "Seppo Renfors" <Renfors@no-spam> wrote in message
> news:3F0D09BC.1AEF666B@no-spam
> > Actually no, that is not so. States are as bound by the constitution
> > and federal law as is the federal government.
>
> Oh no they are not! That's why they have their own constitutions.
I don't know why you argue. All below is the same as I wrote.
> They are
> bound, only to the extent that they agreed to give powers to the Cwth in the
> Cwth constitution, or powers that have been subsequnetly referred to the
> Cwth (eg taxation).
...and that is all anyone has to do.
> If you were talking about America you would be correct. However, our own
> home grown "Washminster" system is a bit different.
>
> Don't forget that all of the founding States had an independant legal
> relationship with the crown prior to federation and that relationship
> subsists to this day.
...and that is partly why the mirrored legislation is required.
> In reality the constitution does no more than define the powers of the
> Federal government, in that it clearly defines a relatively narrow range of
> "heads of powers", the residual is the responsbility of the States.
I does a lot more than that, the constitution itself is a law all on
its own the government (State and Federal) must obey.
> > > That the States needed to legislate in the area at all is good authority
> > > that any legislation passed by the State is in no way limited in its
> > > application to no more than the "parent" cwth legislation.
> >
> > State legislation is limited to within the borders of that state as
> > s51 (i) of the constitution makes clear. Federal legislation applies
> > cross borders as well as within a state.
>
> Wrong. States can and do legislate extraterritorialy (although if you wanted
> to pull an absurd bow it is possible to think up some very silly, though
> constitutionaly correct, examples) just not in areas where the powers have
> been given to the Cwth.
I'd like to see an example of this "extraterritorial" legislation you
suggest is allowed. I know of no such Laws. But I can tell you that
one area where the States do have control is land ownership. Though it
was the High Court (a federal jurisdiction) that ruled on Native
Title. It was the Federal government that implemented the Native Title
Act - yet it is the States who have control of land - though the
commonwealth can compulsorily acquire land if they need it (they did
that for the low level radiation material dump).
> > The state laws are mirroring legislation and is therefor intended to
> > have the meanings of the federal Laws. I suspect this mirroring of
> > legislation is necessarily so state jurisdictions can deal with such
> > as well.
>
> Nope. Needed because the Cwth did not have authority to legislate in the
> requisite area. To take the TPA as an example, it has no application to
> individuals because the constitution only gave the power to regulate
> corporations to the Cwth.
The TPA isn't limited to corporations. It applies to ALL business -
and does govern cross state border transactions - but is not limited
to such.
> I say again. States have plenary power to legislate, subject only to the
> "peace, order and good Government restraint, and of course in areas that
> were given to the Cwth at Federation or referred since.
It is subject to the Constitution. There is no getting away from it -
you have admitted as much above already anyway. See s118 of the
constitution as to WHY the mirrored legislation is needed.
>
> Have a good close look at a State Constitution and also at the Federal one.
> I'd appreciate a reference that says one is subordinate to the other in
> general terms.
Someone has gone and LOST our state constitution..... as for the
Federal one - see s109.
> State legislation is only overridden by Cwth legislation when the Cwth is
> competent to legislate in a particular area, and then the State legislation
> is only negated *to the extent of the inconsistency* with competent Cwth
> legislation.
...as they have with the TPA.
> Two quick examples on point. The Whitlam governments use of the power to
> control overseas trade to prevent sand mining on Frazer Is. If, as you
> believe, the Fed gov had a "natural" precedence over the States they would
> not have had to use the external affairs powers to do so.
That part comes under s51(i) of the constitution.
> Similarly, the use of the power to enter into treaties was used to override
> oppressive legislation in QLD and Tas. If they had "natural" primacy why
> didn't they simply strike the relevant legislation down as they did in NT
> over the euthanasia legislation there (the Cwth does have competency to
> legislate for Territories, but not States, which by-the-by is why they
> intrude so much in ACT internal affairs).
I can't recall what exactly they did. However they don't need to
"strike down" any legislation - they can usurp it by writing an
overriding legislation which effectively rendered the State/Territory
legislation null and void by virtue of s109.
"Seppo Renfors" <Renfors@no-spam> wrote in message
news:3F0D78A4.655DB851@no-spam
>
>
> Tony Smith wrote:
> >
> > "Seppo Renfors" <Renfors@no-spam> wrote in message
> > news:3F0D09BC.1AEF666B@no-spam
> > > Actually no, that is not so. States are as bound by the constitution
> > > and federal law as is the federal government.
> >
> > Oh no they are not! That's why they have their own constitutions.
>
> I don't know why you argue. All below is the same as I wrote.
>
> > They are
> > bound, only to the extent that they agreed to give powers to the Cwth in
the
> > Cwth constitution, or powers that have been subsequnetly referred to the
> > Cwth (eg taxation).
>
> ...and that is all anyone has to do.
>
> > If you were talking about America you would be correct. However, our own
> > home grown "Washminster" system is a bit different.
> >
> > Don't forget that all of the founding States had an independant legal
> > relationship with the crown prior to federation and that relationship
> > subsists to this day.
>
> ...and that is partly why the mirrored legislation is required.
>
> > In reality the constitution does no more than define the powers of the
> > Federal government, in that it clearly defines a relatively narrow range
of
> > "heads of powers", the residual is the responsbility of the States.
>
> I does a lot more than that, the constitution itself is a law all on
> its own the government (State and Federal) must obey.
>
> > > > That the States needed to legislate in the area at all is good
authority
> > > > that any legislation passed by the State is in no way limited in its
> > > > application to no more than the "parent" cwth legislation.
> > >
> > > State legislation is limited to within the borders of that state as
> > > s51 (i) of the constitution makes clear. Federal legislation applies
> > > cross borders as well as within a state.
> >
> > Wrong. States can and do legislate extraterritorialy (although if you
wanted
> > to pull an absurd bow it is possible to think up some very silly, though
> > constitutionaly correct, examples) just not in areas where the powers
have
> > been given to the Cwth.
>
> I'd like to see an example of this "extraterritorial" legislation you
> suggest is allowed. I know of no such Laws. But I can tell you that
> one area where the States do have control is land ownership. Though it
> was the High Court (a federal jurisdiction) that ruled on Native
> Title. It was the Federal government that implemented the Native Title
> Act - yet it is the States who have control of land - though the
> commonwealth can compulsorily acquire land if they need it (they did
> that for the low level radiation material dump).
The High Court is the superior court for both Federal and State
jurisdictions (compare the US approach). Unlike the Federal Court, Family
Court and Federal Magistrates Courts, the High Court has jurisdiction in all
State matters.
> > > The state laws are mirroring legislation and is therefor intended to
> > > have the meanings of the federal Laws. I suspect this mirroring of
> > > legislation is necessarily so state jurisdictions can deal with such
> > > as well.
> >
> > Nope. Needed because the Cwth did not have authority to legislate in the
> > requisite area. To take the TPA as an example, it has no application to
> > individuals because the constitution only gave the power to regulate
> > corporations to the Cwth.
>
> The TPA isn't limited to corporations. It applies to ALL business -
> and does govern cross state border transactions - but is not limited
> to such.
Not exactly, the TPA has restricted application because of the
Constitutional limitations imposed on the legislative power of the Federal
government.
It doesn't even apply to all types of corporations because of those
limitations. Section 4(1) gives the types of corporations to which the Act
applies.
As for natural persons (and other types of corporations and businesses), the
Act will apply to:
· conduct occurring overseas where the person involved was an Australian
citizen or resident;
· conduct occurring in overseas or interstate trade or commerce;
· conduct occurring in trade or commerce within a Territory, between a State
and a Territory, or between two Territories.
· conduct occurring in the course of supplying goods or services to the
Commonwealth;
· conduct involving the use of postal, telegraphic or telephonic services or
occurs in a radio or television broadcast.
These limitations were why mirroring state legislation was required and thus
why the courts have applied decisions interpreting sections of the TPA to
decisions interpreting sections of the state FTAs.
> > I say again. States have plenary power to legislate, subject only to the
> > "peace, order and good Government restraint, and of course in areas that
> > were given to the Cwth at Federation or referred since.
>
> It is subject to the Constitution. There is no getting away from it -
> you have admitted as much above already anyway. See s118 of the
> constitution as to WHY the mirrored legislation is needed.
> >
> > Have a good close look at a State Constitution and also at the Federal
one.
> > I'd appreciate a reference that says one is subordinate to the other in
> > general terms.
>
> Someone has gone and LOST our state constitution..... as for the
> Federal one - see s109.
That only applies to where the Federal government has legislative power
conferred by the Constitution and to the extent that the Federal legislation
(if any) is inconsistant with the state legislation. And yes, each state has
its own Constitution but don't expect a referendum when they are changed by
the state government.
> > State legislation is only overridden by Cwth legislation when the Cwth
is
> > competent to legislate in a particular area, and then the State
legislation
> > is only negated *to the extent of the inconsistency* with competent Cwth
> > legislation.
>
> ...as they have with the TPA.
No, the state legislation is mirroring legislation enacted to overcome the
Constitutional limitations of the TPA and they act in parallel. The TPA
wouldn't have been necessary at all had the states pulled their heads out of
the bums of business leaders.
> > Two quick examples on point. The Whitlam governments use of the power to
> > control overseas trade to prevent sand mining on Frazer Is. If, as you
> > believe, the Fed gov had a "natural" precedence over the States they
would
> > not have had to use the external affairs powers to do so.
>
> That part comes under s51(i) of the constitution.
>
> > Similarly, the use of the power to enter into treaties was used to
override
> > oppressive legislation in QLD and Tas. If they had "natural" primacy why
> > didn't they simply strike the relevant legislation down as they did in
NT
> > over the euthanasia legislation there (the Cwth does have competency to
> > legislate for Territories, but not States, which by-the-by is why they
> > intrude so much in ACT internal affairs).
>
> I can't recall what exactly they did. However they don't need to
> "strike down" any legislation - they can usurp it by writing an
> overriding legislation which effectively rendered the State/Territory
> legislation null and void by virtue of s109.
Only where the Federal Government has legislative power. Hence the outcry
by Queensland and Tasmania when the Federal Government used its foreign
affairs power to vastly extend its legislative power to areas far beyond
what the Constitutional framers would have contemplated (ie the environment,
racial and sex discrimination). Without the wide definition given to the
foreign affairs power by the majority of the HCA, the Queensland and
Tasmanian governments would have been able to have the Federal legislation
struck down as unconstitutional.
Corporations law is an example that has proved particularly difficult for
the Federal government. The High Court has held that the Federal government
doesn't have the requisite head of power to legislate for corporations law.
The states had to transfer their power (for five years only) in order to
give the Federal government the Constitutional power to enact the
Corporations Act 2001.
--
Falkon
> > > They are
> > > bound, only to the extent that they agreed to give powers to the Cwth
in
> the
> > > Cwth constitution, or powers that have been subsequnetly referred to
the
> > > Cwth (eg taxation).
> >
> > ...and that is all anyone has to do.
>
> Which means, that the Fed gov is severely limited in its areas of direct
> competence whilst the States have plenary powers.
I wouldn't say severely limited. The powers the Feds have been given have
been interpreted very broadly - and remember that the explicit grant of a
power to the Feds in many cases takes that power away from the States. Sure,
if something isn't mentioned its assumed to be a State power - but States
don't have the power to issue currency or raise armies, for example.
> No, it is exactly why mirroring legislation is required, there are large
> holes in the Fed's legislative competency, becuase they do not have the
> power to legislate in many areas.
Yep. I have sometimes thought that the relevant mirroring legislation should
just say "All loopholes under the Other Act are hereby blocked".
> That is true partly, The constitution is a document that sets limitations
on
> the areas a Fed Gov may legislate by specifically stating them. It also
> speifically leaves the "residue" to the States. In other words States have
Specifically? Does it? Where?
I haven't read it for a while but I thought the residuals were just left by
implication (because they weren't given to the Cwth and someone must have
them).
> planary powers to deal with matters not given to the Cwth. Whilst the Cwth
> may only legislate under a specific head of power granted to them under
the
> constitution.
head of power yes. specific no. Remember Tasmanian Dams? (I don't, as I was
a toddler at the time, but I've read it).
> > The TPA isn't limited to corporations. It applies to ALL business -
> > and does govern cross state border transactions - but is not limited
> > to such.
>
> I was overly general, there are certain individuals to which the TPA does
> apply, but it does not apply to the overwhelming number of individuals
> operating in "trade or commerce"
Yep. Hence the need for parallel state legislation. When people refer to
their TPA rights/remedies they are really using TPA as a kind of shorthand
for "TPA and whatever the paralell legislation is called in your particular
state, fair trading act in vic"
> Section 109 only applies when the Fed Gov is competent to legislate on a
> particular issue. They donot have plenary powers. Why else do you think we
> have the nightmare that is the corporations and companies legislation? If
Wasn't the companies power ceded? Or is the Corporations Law template?
> the Federal Government were actually fully competent to legislate on its
> own, we wouldn't need the whole grand charade, and allan bond would still
be
> safely tucked up in gaol where he belongs and not out and about falsely
> preaching his "innocence".
Dunno about that.
> To save you a major leap in understanding. Bond was convicted by way of
> proceedings bougt by the Fed DPP pursuant to Fed legislation that
purported
> to give them standing.
> Bond appealed successfully, not on the basis of innocence, but on the
> unconstitutional proceedings against him.......
Really? I didn't know that.
> Now, if your incorrect belief about the Fed's ability to simply override
the
> States at whim was correct, why didn't they simply legislate that tere
would
> be no sand mining on Frazer Is? Instead of the circuititous route of
> legislating to require a license to export certain minerals and then
> indicate that none would be granted for any of the aforementioned minerals
> eminating from Frazer Is.
> To answer my own question, they used (and very contrioversially at the
time
> too), a head of power governing foreign trade becuase they had no direct
> head of power that would have allowed them to simply ride rough shod over
> the State in question.
Yes. So although your statement about Cwth/State powers is technically
correct, Tony, in practical terms if the Fed Govt want to stop a state doing
anything they can usually think up a treaty with the Peoples Democratic
Republic of Upper Equatorial Tinpot to do it :)
"Vaughan Williams" <ender@no-spam> wrote in message
news:3f0de1d4$0$23104$5a62ac22@no-spam
>
> > too), a head of power governing foreign trade becuase they had no direct
> > head of power that would have allowed them to simply ride rough shod
over
> > the State in question.
>
> Yes. So although your statement about Cwth/State powers is technically
> correct, Tony, in practical terms if the Fed Govt want to stop a state
doing
> anything they can usually think up a treaty with the Peoples Democratic
> Republic of Upper Equatorial Tinpot to do it :)
>
Which was why the HCA mentioned (in the Tas Dams case I think) that
treaties/conventions entered into simply to gain legislative competency in
area wouldn't be enough. No clues on how that would be determined or if its
a limitation that would have any practical effect. Hopefully, that
statement alone might be enough to limit responsible government, but with
the trend of contemporary governments (both here and abroad) driving fear
and paranoia, it may not prove enough.
--
Falkon
Vaughan Williams wrote:
>
> "Seppo Renfors" <Renfors@no-spam> wrote in message
> news:3F0D09BC.1AEF666B@no-spam
> >
> >
> > > The fundamental difference between a State government and the Cwth is
> that
> > > whilst the Cwth is limited in its powers by the terms of the
> constitution,
> > > States have plenary powers, subject only to the 'peace, order and good
> > > government' restraint.
> >
> > Actually no, that is not so. States are as bound by the constitution
> > and federal law as is the federal government.
>
> The first sentence is drivel. The second is true, but its not clear how it
> relates to the point under discussion.
Interesting.... if the first sentence is "drivel" so must the second
also be - on the other hand if the second sentence is "true" so must
the first one be true.
Further more the States "unqualified" or "absolute" powers that are
"subject to", "peace, order and good government" - IS drivel. As
powers are neither "absolute" or "unqualified" if they are "qualified"
by something (the "subject to"). In any event, even if no
qualifications existed, it is still wrong. The powers the Commonwealth
doesn't have is those that are left over and belong to the states -
this should be termed "residual" and not "plenary" (a term rarely used
in that context). Therefor both my statements were correct.
Tony Smith wrote:
>
> "Seppo Renfors" <Renfors@no-spam> wrote in message
> news:3F0D78A4.655DB851@no-spam
> >
>
> > I don't know why you argue. All below is the same as I wrote.
> >
> The "argument" is becuase you have it more than slightly wrong. quoting a
> partilaly correct fact and then drawing an totally incorrect inference from
> it does not cut it I'm afraid.
I don't know why you are having difficulties. You have repeated what I
have said, only using more words.
> > > They are
> > > bound, only to the extent that they agreed to give powers to the Cwth in
> the
> > > Cwth constitution, or powers that have been subsequnetly referred to the
> > > Cwth (eg taxation).
> >
> > ...and that is all anyone has to do.
>
> Which means, that the Fed gov is severely limited in its areas of direct
> competence whilst the States have plenary powers.
You need to look up the meaning for "plenary" - it is dead wrong the
way you use it.
> > > If you were talking about America you would be correct. However, our own
> > > home grown "Washminster" system is a bit different.
> > >
> > > Don't forget that all of the founding States had an independant legal
> > > relationship with the crown prior to federation and that relationship
> > > subsists to this day.
> >
> > ...and that is partly why the mirrored legislation is required.
>
> No, it is exactly why mirroring legislation is required, there are large
> holes in the Fed's legislative competency, becuase they do not have the
> power to legislate in many areas.
See! Here is a case where you say "no" and then go into a lengthy
spiel saying what I have already said far more economically. But the
expansion you engaged in you have overstated the case a tad more than
necessary.
> > > In reality the constitution does no more than define the powers of the
> > > Federal government, in that it clearly defines a relatively narrow range
> of
> > > "heads of powers", the residual is the responsbility of the States.
> >
> > I does a lot more than that, the constitution itself is a law all on
> > its own the government (State and Federal) must obey.
>
> That is true partly,
It is wholly true, not only partly!! Neither State nor Federal
parliament can make laws against the constitution.
> The constitution is a document that sets limitations on
> the areas a Fed Gov may legislate by specifically stating them. It also
> speifically leaves the "residue" to the States. In other words States have
> planary powers to deal with matters not given to the Cwth. Whilst the Cwth
> may only legislate under a specific head of power granted to them under the
> constitution.
>
> >
> > > > > That the States needed to legislate in the area at all is good
> authority
> > > > > that any legislation passed by the State is in no way limited in its
> > > > > application to no more than the "parent" cwth legislation.
> > > >
> > > > State legislation is limited to within the borders of that state as
> > > > s51 (i) of the constitution makes clear. Federal legislation applies
> > > > cross borders as well as within a state.
> > >
> > > Wrong. States can and do legislate extraterritorialy (although if you
> wanted
> > > to pull an absurd bow it is possible to think up some very silly, though
> > > constitutionaly correct, examples) just not in areas where the powers
> have
> > > been given to the Cwth.
> >
> > I'd like to see an example of this "extraterritorial" legislation you
> > suggest is allowed. I know of no such Laws.
>
> Look up any Crim code or crimes Act. Anact committed anywhere else that
> would be a crime in that particular State canbe prosecuted as if it occurred
> in the particular State in question. See also the various fisheries Acts.
None of that has anything to do with States being capable of
legislating so the law applies outside their state. A crime committed
in one state is usually not hear in another state - unless it is a
Federal Law that applies - an extradition is sought, and they are not
automatically granted either. Another aspect you might be speaking
about is cross vesting, something common for civil cases.
> They'll do for starters in terms of State powers to legislate
> extraterritorily.
Only none of the above indicates a power to legislate outside the
state itself. There is no such power.
> >But I can tell you that
> > one area where the States do have control is land ownership. Though it
> > was the High Court (a federal jurisdiction) that ruled on Native
> > Title. It was the Federal government that implemented the Native Title
> > Act - yet it is the States who have control of land - though the
> > commonwealth can compulsorily acquire land if they need it (they did
> > that for the low level radiation material dump).
>
> Native Title arose following a decision of the High Court that Australia was
> not "terra-nullius" and that the acquisitioin of Radical Title by the Crown
> did not necessarily extinguish Native Title. It is probably not the
> appropriate time to start discussing the Native Title Act, but the Feds were
> able to legislate becuase a specific head of power gave them power to do so.
That's rather obvious....
> I cannot see what relevance that is to the acquisiiton of lands for Cwth
> purposes other than it too is a specific head of power.
The POINT is that the Commonwealth can legislate over something it
doesn't itself have control over. Something that is within the control
of states.
> Note of course that the State in question is considering blocking the dump
> by way of introducing the requirement for a State licence to transport the
> material through that State (which they will then decline to grant). This
> may well work as the State Government has plenary powers........Remember.
Yeah, the plan is to waste millions on political gamesmanship - so
much is true, but it will do nothing else. It will not alter anything
at all. This is firmly within the powers of the FEDERAL government.
See s51(i), s88, s90, s92, s98, s112 of the Constitution.
> > > > The state laws are mirroring legislation and is therefor intended to
> > > > have the meanings of the federal Laws. I suspect this mirroring of
> > > > legislation is necessarily so state jurisdictions can deal with such
> > > > as well.
>
> No, it's becuase the Federal Parliament is not competent to deal with a
> range of issues, and requires the co-operation of the States, they cannot
> simply impose legislation in many, many areas.
There you are agreeing with me again - yet you are arguing about it.
> > The TPA isn't limited to corporations. It applies to ALL business -
> > and does govern cross state border transactions - but is not limited
> > to such.
>
> I was overly general, there are certain individuals to which the TPA does
> apply, but it does not apply to the overwhelming number of individuals
> operating in "trade or commerce"
It does to anyone sending stuff across a state border. It applies to
all people that come under s51(i), (xx) of the constitution. So what
is the definition of "trading corporation" in the constitution? Is it
the Companies Law (which includes all single director Co Pty Ltd's) or
is it simply an entity that is able to trade cross borders?
> > It is subject to the Constitution. There is no getting away from it -
> > you have admitted as much above already anyway. See s118 of the
> > constitution as to WHY the mirrored legislation is needed.
> S118
> Full faith and credit shall be given, throughout the Commonwealth to the
> laws, the public Acts and records, and the judicial proceedings of every
> State.
> > >
>
> Sorry, but you will have to explain very slowly how that clause advances
> your cause one iota....
The context I replied in is gone, so it is no longer possible to know
what I referred to.
> > > Have a good close look at a State Constitution and also at the Federal
> one.
> > > I'd appreciate a reference that says one is subordinate to the other in
> > > general terms.
> >
> > Someone has gone and LOST our state constitution..... as for the
> > Federal one - see s109.
>
> Do you mean lost your personal copy, or are you labouring under the
> misaprehension that your State does not have one?
Someone has lost the STATE'S actual physical copy of it. This does not
mean the State doesn't have a constitution - it means the copy of it
is lost. What the state constitution is doesn't really matter. It can
be changed by the party in government without going to the people.
> Section 109 only applies when the Fed Gov is competent to legislate on a
> particular issue.
I really do not understand why you keep writing the bleeding obvious
already stated.
> They donot have plenary powers.
...and the term "plenary" is an obscure one to use - and wrong. You
have people thinking of a plenary session at some conference or other
where the term is most often used.
> Why else do you think we
> have the nightmare that is the corporations and companies legislation? If
> the Federal Government were actually fully competent to legislate on its
> own, we wouldn't need the whole grand charade, and allan bond would still be
> safely tucked up in gaol where he belongs and not out and about falsely
> preaching his "innocence".
I have no idea what you are on about. Company Law is in the Federal
jurisdiction..... see the constitution s51(i),(xx).
> To save you a major leap in understanding. Bond was convicted by way of
> proceedings bougt by the Fed DPP pursuant to Fed legislation that purported
> to give them standing.
So? Nothing wrong there!
> Bond appealed successfully, not on the basis of innocence, but on the
> unconstitutional proceedings against him.......
So? If the proceedings were not handled correctly they were not
handled correctly..... what's your point?
IIRC Bond spent a considerable time behind bars.
> > > State legislation is only overridden by Cwth legislation when the Cwth
> is
> > > competent to legislate in a particular area, and then the State
> legislation
> > > is only negated *to the extent of the inconsistency* with competent Cwth
> > > legislation.
>
> I'll leave this bit here as it is 100% correct.
>
....which I had already said - and what wasn't said, blind Freddy
could see as it was obvious.
>
[..]
> >
> > I can't recall what exactly they did. However they don't need to
> > "strike down" any legislation - they can usurp it by writing an
> > overriding legislation which effectively rendered the State/Territory
> > legislation null and void by virtue of s109.
>
> The legislation in question related to State Laws making homosexual
> relationships between consenting adult men a crime.
That is but one of many instances the Feds have overruled a state.
> Section 109 could only come into play if the Cwth could find a way (i.e. an
> appropriate head of power) to legislate to put the relevant "crimes" in
> conflict with a Cwth Act.
>
> Now, if as you mistakenly believe, the fed Gov had a natural primacy, didn't
> they simply pass a law that said somethign along the lines of "Homosexual
> relationships between consenting adults is lawful anywhere in Australia
> becuase we say so".
I really have no idea where you get these strange ideas about what I
have said when I haven't. I expect certain powers of logic to exist -
that some common sense understandings need not be said when they are
obvious. Lets look at that particular law (and I don't know which one
you refer to, as you don't say, but it doesn't matter). The
Commonwealth legislates (within the powers of the constitution - and
THAT should go without saying) that overrides the Tasmanian Law - the
Tas Law is D-E-A-D! FACT: They have done it. End of story.
> Instead, they had to go the circuitous route of referring to the head of
> power to make treaties, in this case the UN universal declaration on civil
> and political rights, to invalidate certain sections (not the whole thing)
> of the State legislation.
So? It IS one of the things they do control. Nothing new about this.
> Are you seeing that it is not anywhere near as simple as you thought now?
There is nothing difficult about any of that. These are well known
methods of overriding state Laws with - they are known as "external
powers". It is within the powers afforded by the constitution and it
is STRICTLY according to what I said to begin with.
> If
> it where then a whole range of things like different State road laws,
> different education recognition, different tax and excise structures could
> all be sorted out by the Feds simply legislating to enforce uniformity. The
> fact that they enter into negotiations over many years (in the case of some
> of the examples above) or don't (as in some of the others) is indicative
> that they have nothing like the pwoer you believe they have.
Are you trying to score points or something?
"Seppo Renfors" <Renfors@no-spam> wrote in message
news:3F0EC9F9.E4A4F510@no-spam
> > > It is subject to the Constitution. There is no getting away from it -
> > > you have admitted as much above already anyway. See s118 of the
> > > constitution as to WHY the mirrored legislation is needed.
> > S118
> > Full faith and credit shall be given, throughout the Commonwealth to the
> > laws, the public Acts and records, and the judicial proceedings of every
> > State.
> > > >
> >
> > Sorry, but you will have to explain very slowly how that clause advances
> > your cause one iota....
>
> The context I replied in is gone, so it is no longer possible to know
> what I referred to.
Or more correctly that one is a bit too hard for you to now attempt to
ascribe a different meaning to with the benefit of hindsight. By my count
that is both your own big toes you have now shot off.
>
>
> Someone has lost the STATE'S actual physical copy of it. This does not
> mean the State doesn't have a constitution - it means the copy of it
> is lost. What the state constitution is doesn't really matter. It can
> be changed by the party in government without going to the people.
>
Which, as it happens, is indicative of the plenary powers held by the State
Legislatures, they are not bound by constitutions because when they were set
up they inherited their power from the Imperial parliament, likewise not
bound by any constitution.
> > Section 109 only applies when the Fed Gov is competent to legislate on a
> > particular issue.
>
> I really do not understand why you keep writing the bleeding obvious
> already stated.
Because you didn't, you only pretend now that you did.
>
> ...and the term "plenary" is an obscure one to use - and wrong. You
> have people thinking of a plenary session at some conference or other
> where the term is most often used.
Nope, I have a very clear understanding of what plenary power is, the gap in
understanding is entirely your own.
>
> I have no idea what you are on about. Company Law is in the Federal
> jurisdiction..... see the constitution s51(i),(xx).
Ah. I see, a little like trying to discuss the concept of colour with a
blind man I see.
>
> > To save you a major leap in understanding. Bond was convicted by way of
> > proceedings bougt by the Fed DPP pursuant to Fed legislation that
purported
> > to give them standing.
>
> So? Nothing wrong there!
Except that the Feds cannot simply legislate to give themselves standing in
any matter that crosses their collective minds. Which is why they went down
in a screaming heap.
>
> > Bond appealed successfully, not on the basis of innocence, but on the
> > unconstitutional proceedings against him.......
>
> So? If the proceedings were not handled correctly they were not
> handled correctly..... what's your point?
The point, which you are obdurately trying to avoid is that there was
nothing "wrong" with the proceedings other than the inconvenient fact that
they were brought subject to legislation that the Fed Gov was not competent
to make and therefore they had no standing to bring the action at all. that
is the essence of any constitutional challenge to Fed legislation.
>
> IIRC Bond spent a considerable time behind bars.
Appeals on constitutional issues take time.
>
> > > I can't recall what exactly they did. However they don't need to
> > > "strike down" any legislation - they can usurp it by writing an
> > > overriding legislation which effectively rendered the State/Territory
> > > legislation null and void by virtue of s109.
Sophist crap.......If they had the power that you clearly claimed to simply
over ride, then they would have done so and not indulged in the circuitous
difficult route used. Witness the simple process to strike down NT
legislation, simply disallow it. The concept of Fed Legislation invalidating
State legislation to the extent of the inconsistency (and no more remember)
in cases where the Feds do have legislative competency is a long, long way
from invalidating.
> >
> > The legislation in question related to State Laws making homosexual
> > relationships between consenting adult men a crime.
>
> That is but one of many instances the Feds have overruled a state.
But they were only able to do so via an external affairs power, they had no
natural competence to "overrule". Keep trying, you will get this one day
I'm sure.
>
> I really have no idea where you get these strange ideas about what I
> have said when I haven't. I expect certain powers of logic to exist -
> that some common sense understandings need not be said when they are
> obvious. Lets look at that particular law (and I don't know which one
> you refer to, as you don't say, but it doesn't matter). The
> Commonwealth legislates (within the powers of the constitution - and
> THAT should go without saying) that overrides the Tasmanian Law - the
> Tas Law is D-E-A-D! FACT: They have done it. End of story.
All that verbiage just to state the effect (and get it wrong in the process)
of sect 109:
"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."
It's that little tricky "to the extent of the inconsistency" that has you
beat isn't it?
Given you difficulty in understanding I wonder if in fact that English may
not have been your first language?
In any event this is a less than subtle shift from your original stance that
the Fed legislation over rode *any* State legislation. Now you are at least
tagging it with "fed legislation made pursuant to a head of power int he
constitution", but that is unfortunatel ynot what you originally tried to
pass off as fact is it..
Keep going Seppo, we will bring you, kicking and screaming no doubt, to
understanding yet.
I'll leave this following bit in as you have already failed once in trying
to prevaricate yourself around it.
> > If
> > it where then a whole range of things like different State road laws,
> > different education recognition, different tax and excise structures
could
> > all be sorted out by the Feds simply legislating to enforce uniformity.
The
> > fact that they enter into negotiations over many years (in the case of
some
> > of the examples above) or don't (as in some of the others) is indicative
> > that they have nothing like the power you believe they have.
>
> Are you trying to score points or something?
Of course I am, although not to the extent that you have been trying to, and
have been failing so badly at in the process.
The above is a beautiful example of why all your earlier arguments, that is
the ones before you tried to pretend you said or meant something different,
are so much drivel. If the Fed Gov was universally competent legislate on
the issues touched on above, then the problems caused by those same issues
would have simply disappeared years ago...... The problem, for you, is that
they can't do that, because they don't have the legislative competency and
have to negotiate with the various States, who do have plenary competency,
to either refer the powers to the Feds, or pass uniform legislation.
Tony Smith
"Seppo Renfors" <Renfors@no-spam> wrote in message
news:3F101AF6.973E6F25@no-spam
>
> Further more, the point here is your apparent inability to understand
> "plenary" - it is from your use of that term your errors flow - if
Tell you what Seppo.
You stick to your flawed understandign of the term.
You see, numerous members of the High Court, over a period of 6 decades
(refer to cases I cited) agree with me.
Strangely, i think that they, and I, are right and that you are wrong.
End of story.
Tony Smith
"Seppo Renfors" <Renfors@no-spam> wrote in message
news:3F101B94.6D6FCF76@no-spam
>
> You clearly have NO IDEA what "plenary" means in the context you are
> attempting to use it in.
If so, then I have for company the members of the high Court who have sat on
numberous cases concerning the interaction of State and Federal powers.
Seeing as there interpretation is the same as mine, I am comfortable that I
am right and you are dead wrong.
On the subject of "posters in disguise", are you sure you aren't the Rodbot
in mufit? It is the only thing I've ever seen attempt to maintain its own
idiosyncratic view in the face of overwheming evidence to the contrary. Even
to the point of pretending that specific words were not in a particular
regulation when in fact the entire world, except him,could read them.
You resistance to expanding your miserable knowledge of consititutional law,
whilst at the same time resortinf to prevarication and sophistry to attempt
to maintain a "position" is laughable.
Tony Smith