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Re: FEE SIMPLE, PROPERTY, etc

Darryl,
as I pointed out previously s.114 relates to the State not placing any taxation on the Commonwealth
(without its consent) or the Commonwealth not placing any taxes on State properties. The issue
then is what defines "property"?
.
QUOTE
114 States may not raise forces. Taxation of property of
Commonwealth or State
A State shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force, or
impose any tax on property of any kind belonging to the
Commonwealth, nor shall the Commonwealth impose any tax on
property of any kind belonging to a State.
END QUOTE

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The High Court of Australia in Commonwealth v New South Wales [1923] HCA 34; (1923) 33
CLR 1 (9 August 1923) held that property was not just the land but anything under it as well as on it
and any items on the land when it was dealing with s.85. I have in the past disputed this to be
correct as the Framers of the Constitution never intended that this would be deemed as such, as they
were merely talking about property being the commonwealth in sovereign or landlord (s.85).
However, considering the wider interpretation by the High Court of Australia then one may argue
(rightly or wrongly) that all roads under Commonwealth authority/funding cannot be subject to any
road tax or otherwise.
.
Likewise any item purchased from the State government, including its bookshops cannot be
subjected to any GST or other tax! After all the books are “property” of the State until it is sold!
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Likewise, any service the State provides is technically “property” of the State.
.
As such using bus/train/tram or other like services on the property of the State government (as the
companies running the system do not own them) then also cannot be taxed.
.
As such, when purchasing maps from a State government bookshop or other items via a State
Government Department then all cannot be subjected to any form of taxation.
.

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By this then also relates to Crown land that is sold to a purchaser, etc. However the State itself is
not prohibited to levy taxes upon any property unless it specifically clashes with any FEE SIMPLE
rights. The Fee simple right can vary from property to property pending the conditions that were
attached, if any, at the time the Crown sold the land to the original purchaser.
.
As the Framers of the Constitution made clear the State of Victoria made an error to sell land
without specific restriction and could do no more but seek to pay the asking price of a property as it
couldn’t acquire any property without paying for it the full price that was requested.
This is a legal principle that was embedded in the Constitution but the High Court of Australia
never seemed to realise this or concealed it. (That doesn’t surprise me at all!)
.
With the state government selling of its assets like the mining then what used to be free of taxation
by the Commonwealth now in private hand the consumers are slugged for taxation!
.
Section 114 doesn’t prohibit the Commonwealth to levy tax on State properties since it was sold
onto private interest because it no longer is State property albeit still part under its (legal)
jurisdiction. As such when Crown land changes hand to become private property then section 114
of the constitution no longer applies.
.
What you then have is the State having sold land with FEE SIMPLE and then the issue is of the
Commonwealth can raise taxes on privately owned land despite of any FEE SIMPLE existing.
.
Taxation powers exist for both the Commonwealth and the State albeit once the Commonwealth
commences to legislate upon a certain subject as for taxation then the States have to but out.
.
The issue then also is if the Framers of the Constitution intended to provide the Commonwealth any
legislative powers above and beyond that a State could do in regard of FEE SIMPLE.
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In my view, the Framers of the Constitution did not intend and neither did give the Commonwealth
more legislative powers then that existed at the time with the colonies and indeed all they desired
was to transfer colonial powers in regard of mainly interstate and foreign affairs matters to the
Commonwealth while leaving all other legislative powers with the States.
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The question then has to be asked if the Framers of the Constitution had the power to give the
Commonwealth of Australia greater power then that which existed with a colony. In my view they
had no such legal position and didn’t intend to do so.
.

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In my view the powers exercised by the Commonwealth of Australia were nothing more then what
previously existed with the colonies. The Framers of the Constitution (Delegates) could not exceed
the delegated powers of the colonies and the colonies could not give their agents (delegate) more
power then they themselves had!
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In the 1923 decision the court claimed “No limitation is placed by the Constitution on the
property in respect of term of which Parliament may legislate.”. The High court of Australia in
error referred to a Canadian decision rather then to consider the intentions of the Framers of the
constitution!
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What one should really do is to use this judgment against the State to perhaps seek to prevent the
State to raise taxes on anything purchased from a Commonwealth government authority and
likewise from the Commonwealth to tax anything that was purchased from the state Government,
such as private number plates.
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Again, as to the issue of any taxation on FEE SIMPLE property it all may depend upon what kind
of FEE SIMPLE exist on the property! For example properties that were sold in the MALLEE (I
own a residential property there) the FEE SIMPLE was there provided with far less restriction then
that exist in Viewbank, where I own my residential property.
Therefore be very careful to what claims you make as to FEE SIMPLE because you need to check
the terms and conditions of the FEE SIMPLE grant, and again they were not the same all over
Victoria or for that Australia.
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I for one lack the time or the incentive to check out each and every property held in private hands as
to what its constitutional position is and neither is this what I desire to engage into. That is not a
constitutional issue but a rather private issue for each owner of private property to determine.
.
As for the power of acquisition by the Commonwealth within s.85 as to compulsory acquisition it
may be worthwhile to consider that if for example the State of Victoria could do nothing but to
outbid other bidders for private property to be able to purchase it back from the proprietor then how
could the State delegates (the Framers of the Constitution) then give greater powers to the
Commonwealth in s.85 for compulsory acquisition?
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And as I have set out comprehensively in past published books in the INSPECTOR-RIKATI®
series on certain constitutional and other legal issues the Framers of the Constitution made clear that
if the commonwealth acquired property compulsory then if it was without the consent of the State
then the Commonwealth would merely be a proprietor of the land and all State legislation remained
applicable for so far not conflicting with the function for which the commonwealth obtained the
property, where as if it was acquired with the consent of the State then the Commonwealth would
not be the proprietor but the sovereign and all State laws would be extinguished.

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There is a lot more to it but I am not going to set it all out time and time again because you can
always go down to the National Library of Australia in Canberra and look it up in my books held
there, free of charge!
.
Quite frankly too often I get people making same or simular arguments and it is to be a sheer waste
of my time to repeat the same because they can’t bother to read it up.
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I provide a lot of material and all for free on my blog http://www.scribd.com/InspectorRikati and at
my website http://www.schorel-hlavka.com and if anyone is too lazy to check it out then I cannot
bother to do the work for them.
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I am also running a special lifeline service for some 30-years and people should understand that the
time I spend not just duplicating or triplicating but time and time again setting out the same is
keeping me from more important work to assist others in desperate need.
.
As such, as I indicated previously, if you do want to ask something then give a precise set out what
your are on about and not expect others to guess what you are meaning.
.
I do have those jokes who claim that it is too much work for them to read the material and then I tell
them don’t bother me.
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If you go to the blog and then go to documents you find you can search throughout the entire blog
for any particular word or wording and then you get the result and as such I cannot make it simpler
then already is done.
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Not just for you but also for everyone else do not bother to ask a question unless you first have
given sufficient time and effort to research the issue yourself as if you are not prepared to bother to
do so then forget being a freedom fighter or whatever one calls it because only lazy people are
getting no where.
.
I get every day numerous people contacting me about their intention to litigate but too laze do so
any basic research themselves and they do not seem to understand that they are wasting my time
also and in the process rob others of my time they badly need. I do not mind a person contacting me
with a fair dinkum question where they show having done their own basic research and may seek a
clarification about a constitutional matter but then I can at the least expect a person to put to me a
question in a proper format to indicate what the question is about and not for me to be guessing
what the person may have in “mind” as I am not a mind reader!

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Chapter 000X Page 5

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As such, whatever your purpose and intentions may be do consider that when you ask not just me
but anyone else for that matter a question you set out precisely what you are on about. Quote
relevant parts of Authorities/legislation you seek to rely upon as you never can expect to have
someone else doing it for you.
.
I recommend to anyone never to take up a constitutional issue upon the basis someone else will do
the work for you because if you do not understand/comprehend the issue personally then more then
likely you are doomed to failure and make it in the process worse for those who do put time and
effort into it all.
.
Gerrit
.
Mr G. H. Schorel-Hlavka
.
6-8-2010

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