"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.
> > 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.
>
> > 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.
>
> > 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, 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.
They'll do for starters in terms of State powers to legislate
extraterritorily.
>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.
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.
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.
>
> > > 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.
> 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 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....
> > 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?
>
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
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".
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.......
> > 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.
>
>
> > 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.
OK, so you got that bit.
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.
>
> > 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.
The legislation in question related to State Laws making homosexual
relationships between consenting adult men a crime.
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".
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.
Are you seeing that it is not anywhere near as simple as you thought now? 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.
Tony Smith