Inconsistency between State and Federal laws PDF

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Inconsistency between State and Federal laws summary...

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Inconsistency between State and Federal laws (s 109) Commonwealth of Australia Constitution Act 1900 (Imp) Inconsistencies: Section 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.’ Constitutional text  Central concern: inconsistency between State law and Commonwealth law  Federal law will prevail over state law – the state law was validly passed, but to the extent of any inconsistency it does not apply; state law can therefore be fully operative again if the Federal law is repealed Purpose  Conflict must be resolved  A public institutional purpose – one nation, operating federally (Flaherty v Girgis (1989) 63 ALR 466, 470 (Kirby J))  To protect the Cth against State laws impair Cth functions (Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, 520 (Latham CJ)) Preliminary considerations  Key terms in s 109: inconsistent, prevail and invalid  In order for s 109 to apply, there must be a valid state law and a valid commonwealth law. If either is invalid, no conflict of law arises  Are the laws subject to an express or implied constitutional limitation? Consequences of invalidity  An inconsistent State law is only invalid “to the extent of the inconsistency” (and no further).  Invalid = “inoperative” (potential to be revived following period of inconsistency): ― See, eg, Butler v Attorney-General (Vic) 1961. Tests for inconsistency: Three broad circumstances where a commonwealth law is inconsistent with state law, resulting in the commonwealth law prevailing  The “simultaneous obedience” test  The “conferral of rights” test  Cover the field (1) The simultaneous obedience test  One law commands what the other forbids, or when one law compels disobedience of the other. It is impossible to obey both laws. R v Licensing Court of Brisbane; Ex Parte Daniell (1920) 28 CLR 23  Liquor Act 1912 (Qld), s 166 – state referendum on liquor hours will be held on the same day as the Senate election  Commonwealth Electoral (Wartime) Act 1917 (Cth), s 14 – ‘no referendum or vote of electors of any State or part of a State shall be taken under the law of a State’ on a Senate election day  Per Knox CJ, Isaacs, Gavan Duffy, Powers, Rich and Starke JJ (at 24): ― ‘There arises upon that construction a conflict, or inconsistency, between the State Act

authorizing and commanding the vote on that day and the Commonwealth Act, assumedly competently made, forbidding the vote on that day. Then s 109 of the Constitution enacts that in such a case the State law, to the extent of the inconsistency, is invalid…’ (2) Conferral / denial of rights test  If one law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish (denial of rights); i.e. one law says that you can do X, the other that you cannot do X  Must look to the practical working out and actual effects of each law. Clyde Engineering Co Ltd v Cowburn (1926) Facts:  NSW Act provided that a worker’s “ordinary working hours” were to be 44 hours per week (with overtime rates payable beyond that period).  The Cth award set the ordinary working hours at 48 hours per week (deductions to be taken out of the standard wage for fewer hours worked). Issue:  “Simultaneous obedience” was possible (employee could work 44 hour week and have pay docked four hours for failing to work the 48 hours required under Cth legislation).  Was there an inconsistency between the two laws? Held: Knox and Gavan Duffy JJ:  At 478: “[T]he enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than impose duties: they may, for instance, confer rights; and one statute is inconsistent with another when it takes away a right conferred by that other even though the right be one which might be waived or abandoned without disobeying the statute which conferred it.” Colvin v Bradley Bros Pty Ltd (1943) Facts:  A Cth award (enacted under the Conciliation and Arbitration Act 1904 (Cth)) permitted the owner of a factory with milling machines to employ women to work on milling machines.  However, a State Act (State Factories and Shops Act 1912 (NSW)) made it an offence to employ females on such machinery. Held: Denial of a legal permission  Per Latham CJ: ― “In this case there is an express prohibition by a State authority of the employment of females on a milling machine. There is an express permission by a Commonwealth authority to employ females on work which is admitted to include work on a milling machine unless such work is declared by a Board of Reference to be unsuitable. There has been no such declaration by a Board of Reference.  Therefore there is an express prohibition by the State authority of that which is permitted by the Commonwealth authority … In this case there is, in my opinion, a clear inconsistency, and therefore the Commonwealth award prevails…” (3) Cover the field  Cth law evinces an intention to ‘cover the field’ and the State law also operates in that same field.

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Clyde Engineering v Cowburn (1926) per Isaacs J (at 489): ― ‘If … a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.’ Ex parte McLean (1930) 43 CLR 472, 483 Dixon J ― ‘The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed’ Relevant inquiries: Isaacs J in Clyde Engineering (489-490): o Identify or characterise the field, or subject matter, that the Commonwealth law deals with and regulates. o Ascertain whether the State law attempts to enter into or regulate a field which the Cth intends to cover. o If the two laws do overlap, ascertain if the Cth INTENDED to cover the field – did the Cth Parliament intend its law to be the only law on the subject matter in question? Requires a significant conflict – the State law must “undermine” the Cth law Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508, 525: ― a ‘real conflict’ in that any alteration or impairment of, or detraction from, Commonwealth law ‘must be significant and not trivial’. The notions of ‘altering’, ‘impairing’ or ‘detracting from’ the operation of a Commonwealth law ‘have in common the idea that a State law conflicts with a Commonwealth law if the State law undermines the Commonwealth law’. Identification of the “field” o Identify the field (characterize the relevant laws) o Where two laws are directed to different subject matters, there can be no indirect inconsistency and each may validly apply in relation to the same set of facts. o Examples: ― Commercial Radio Coffs Harbour Ltd v Fuller (1986) ― Airlines (No 2) ― Cf O’Sullivan v Noarlunga Meat Ltd (1956) 95 CLR 177 (broad approach to identifying the relevant field/s  inconsistency finding)

Implied intention  Inferring intention to cover the field  Not entirely clear, but two potential considerations: (1) the detail of the legislative regime; and (2) the subject matter of the legislation.  But note that neither factor is a decisive indicator: ― Flaherty v Girgis (1985) 4 NSWLR 248 (at 255) per Kirby P (“[r]eference to the ‘intention’ of a legislature involves, in matters of this kind, an even greater appeal to legal fictions than is ordinarily the case”). Detail  Inferring intention to cover the field  E.g. O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565 o The Metropolitan and Export Abattoirs Act 1936 (SA), s 52A – State licence was required for slaughter in certain areas; offence to breach.

o The Commerce (Meat Export) Regulations (Cth) – prohibited export of meat unless slaughter was carried out in premises registered under Cth regs. o Noarlunga – had Cth registration, but not State licence o Held, by majority – comprehensiveness of Cth regs demonstrated intention to cover the field of premises used for slaughtering o Fullagar J ― Elaborate and detailed scheme under the regs; ― State would be prohibiting the use of the premises for the purpose they had been registered with the Cth – registration set out authorised use, including slaughter Subject matter  Field in which a uniform approach is considered necessary. Eg the prevention of collisions at sea: Victoria v Commonwealth (Kakariki Case) (1937) Recent examples  Commonwealth v Australian Capital Territory (2013) 250 CLR 441 (‘Same Sex Marriage’ Case). Marriage Act 1961 (Cth) = “a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage” (at [57]).  Work Health Authority v. Outback Ballooning Pty Ltd & Anor [2019] HCA 2 Manufacturing inconsistencies  Commonwealth legislation cannot be permitted to create or manufacture an inconsistency  Stock Motor Ploughs Ltd v Forsyth  While a Cth law cannot attempt to deny validity to a State law by direct force, the Cth may expressly evidence an intention to cover the field (ie, so that s 109 applies): o Cth law may include provision that ousts the operation of any State law: Wenn v Attorney-General (Vic) (1948) o Western Australia v Commonwealth (Native Title Case) (1995) 183 CLR 373, 466: ‘the intention may appear from the text or from the operation of the law. The text may reveal the intention either by implication or by express declaration. And if it be within the legislative power of the Commonwealth to declare that the regime prescribed by the Commonwealth law shall be exclusive and exhaustive, it is equally within the legislative power of the Commonwealth to prescribe that an area be left for regulation by State law. o Work Choices case ― Workplaces Relations Act 1996 (Cth) expressly stated its intention to operate to the exclusion of certain State laws ― But note also s 16 – exclusion of state and territory law did not apply to anti-discrimination legislation  Cth may expressly provide that its laws are to be complementary to those of the States and “leave the field open” for such laws to apply: ― See R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (Australia) (1977)  But cannot purport to retrospectively clear the field: ― University of Wollongong v Metwally (1984) 158 CLR 447  ‘It is not possible for the Cth to force its salary or pensions legislation into direct conflict with the income taxation laws of a state without destroying the validity of its own legislation’ West v Commissioner of Taxation

Manufacturing consistency  Whatever doubt may remain about whether the Cth can cover the field by an express provision declaring its legislative intent to do so, there appears to be none that it can avoid covering a legislative field by declaring its intention not to do so. Such a declaration will be accepted as a conclusive indication of legislative intent  in practice the Cth can control the operation of s 109 negatively by making it clear that relevant state laws are to operate concurrently with the commonwealth law....