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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42631
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Are you able to assist a member of the public with a

Customer Question

Are you able to assist a member of the public with a conflict of State Law and Commonwealth Law and Commonwealth Constitution
Submitted: 9 months ago.
Category: Australia Law
Expert:  Leon replied 9 months ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

We can provide some information but not take on such a case.

Customer: replied 9 months ago.
According to the State of Victoria Domestic Animals Act 1994 section 96, Exotic birds (non native) are not permitted to be sold outside a pet shop or private residence. According to the Australian Government Environment Department (EXOTIC BIRDS) = Australians may own/trade/breed exotic (Non Native) birds in Australia. Commonwealth Constitution section 109 in particular contradicting laws. Am I correct.
Customer: replied 9 months ago.
Victorian bird breeders were not permitted by the State Agriculture Minister to continue selling exotic bids at bird sales after 30 years. Commonwealth Constitution states that if one law is inconsistent with the other then the Commonwealth Law prevails and the former becomes invalid.
Just want to be able to go back to what we were doing before this restriction was imposed.
Expert:  Leon replied 9 months ago.

Good Afternoon

You have to be careful.

The Commonwealth may say that you can own/trade/breed exotic but it does not decide how and where.

The powers of the commonwealth are all set out in section 51 and limited.

The states have wider powers.

You have to find the inconsistency. If you find it then you have to take it tot eh High Court and fight it.

You also have to make sure that the Commonwealth has the power to regulate what you say is inconsistent. The Commonwealth has the power to allow the importation of foreign animals, as it deals with order control, But the states can restrict some movement as well. These powers are not inconsistent they work together.

I hope this makes sense?

Customer: replied 9 months ago.
Thanks for your reply. Unfortunately your reply does not clarify to me where we stand. If we go on as if nothing has happened and go according to the Commonwealth Laws and Constitution who is to say we are right or wrong. Who is to say the State Minister is right or wrong. DEPI have approved the 16 sales in Victoria by saying licenced birds (Non Native) do not need licences. Who is there that can interpret what is written and what is meant by whom and when
Expert:  Leon replied 9 months ago.

Good Morning

I cannot tell you if there is a conflict. The only authority is the High Court.

The fact that the States have had the Act all along and have just amended it is evidence they have the power to make laws on who can sell exotic birds.

The same exists here. The sale of exotic and native species is controlled by the states.

But the Commonwealth controls their importation.

A constitutional lawyer is what you need to be able to run this type of case.

Contact the Law Institute of Victoria and get a referral. Also make sure others in your position are also involved to share the costs.

Their website is http://www.liv.asn.au/

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon