[extropy-chat] Ultra Vires nature of laws made in error?

[Brett Paatsch]

Extropian Agroforestry Ventures Inc. wrote:

> Can a law which is made based upon an incorrect, misleading
> or  unfactual basis be questioned decades later and be amended
> or replaced to correct original errors in its original enactment?

Yes. Due to the separation of judicial and executive powers
in most Western countries. The executive can sometimes err
or overreach and make a law that is later challenged and revoked
on the basis that the executive did not have the constitutional 
authority to make it. 
 
> Anybody anywhere ever come across such a contention?

Yes. I think Mabo and the doctrine of "terra nullis" was an
example in Australia. 

Alan Bond a former Australian "entrepreneur" took on the 
Commonwealth government over the constitutionality of 
the corporations law around 1991 and had the law thrown
out - eventually. The Corporations Law was rebuilt - but it
had to be. Warning - I am speaking loosely here but then 
so were you. 
 
> The application is this:
> 
> In Canada Medical Cannabis is and has a consensus by the
> public and representative organizations to be defined as a 
> "natural health product"

Ok I assume Canada as a former British colony would have
inherited most of the English law tradition. Ergo the separation
of the judiciary and the legislative and executive branches
of government. 

> 
> Canada since July 2003 has a NHP act and regulations and
>  bureaucracy.
> 
> The key issue used by health Canada to keep cannabis out
> of the NHPD formulary and perview is that it is listed in the
> CDSA (controlled drugs and substances act) and therefore
> can never become an NHP.
> 
> Natural health products have a full coverage of product 
> safety, efficacy regs..and can be prescribed the same as 
> pharmaceuticals...
> 
> "Pharmer Mo"

I am looking at something similar myself. Its hard to comment
without specifics. But it may help you to understand that the
purpose of the high court or whatever is the highest court
in Canada is probably to rule (in part) on whether legislation
is constitutional as well as to be (if it is like Australia) the last
- highest court of appeal. Many people don't challenge laws
that are not constitutional because it takes time and money and
commitment and there are sometimes easier ways. Most of
the time people go to the high court is because they are
appealing to save their hide from jail or more jail etc. Esoterics
like constitutional law vs criminal law usually find fewer 
sufficiently empassioned champions (or so it seems to me). 

I am beginning to think that things go in cycles and that govt's
left unwatched and unchallenged for too long by citizens
willing to avail themselves of the processes of the court
adapt themselves to the laisse fair attitude of the community
and start to get creative with what they will try and get away
with. The reluctantly some poor bunny has to bring them 
back into line using the courts. 

I am considering an action at present that would overturn
a lame-brained horse-trading regulation that is made under
an act - the Therapeutic Goods Act 1989 and my argument
would be that the effect of the regulation runs counter to the
object of the act under which it was made and therefore it 
cannot be made under that Act.  Essentially. But its early days.

Regards,
Brett