Week 3 Notes including s109 PDF

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LAWS4001 Constitutional Law Week 3 2019 Inconsistency and s 109 (Hanks, 567-615) Constitutional text 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. The demarcation of legislative powers which characterises the Australian federation gives rise to the possibility of conflict and inconsistency between State and Commonwealth laws in areas of concurrent legislative power. The mechanism which the Constitution supplies for the resolution of such conflicts is s 109. In the event of conflict, s 109 gives paramountcy to Commonwealth laws to the extent of inconsistency. Native Title Case (1995) 183 CLR 373 (Hanks 603-604): “It was an inevitable consequence of the constitutional distribution of specific legislative powers to the Commonwealth and residual legislative powers to the States that there would be cases of inconsistency between the legislative provisions governing the same act, matter or thing.” The issue of conflict between Commonwealth and Territory laws is governed by s 122 of the Constitution, not s 109 (Hanks, 611-616). On the question of inconsistency between Commonwealth and Territory legislation, see Commonwealth v ACT (2013) 250 CLR 441 per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (Hanks, 613 ff): “[If] a Commonwealth law is a complete statement of the law governing a particular relation or thing…a Territory law which seeks to govern some aspect of that relation or thing cannot operate concurrently with the federal law to any extent.” (Hanks, 614) The most recent case on conflict between Commonwealth and Territory laws is Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 26 February 2019

Laws (Hanks, 569) Section 109 only operates in respect of valid “laws” of the Commonwealth and the States. These laws include: • State and federal statutes: Engineers’ case (1920) 28 CLR 129. • Subordinate legislation such as regulations, statutory rules, rules of Courts and industrial awards are also laws for the purpose of s 109: Ex parte McLean (1930) 42 CLR 472 (Hanks, 572); O’Sullivan v Noarlunga Meats Ltd (1954) 92 CLR 565; Page 1 of 8

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Jemena Asset Management v Coinvest (2011) 244 CLR 508 (Hanks, 571). This includes Rules of court: Flaherty v Girgis (1987) 162 CLR 574. Administrative orders such as navigation orders and notices to pilots have been held not to be “laws” pursuant to s 109: Airlines of New South Wales v New South Wales (No 1) (1964) 113 CLR 1. The ordinary rules of statutory construction suggest that the common law is not a “law” within s 109. The High Court has confirmed this in Master Education Services v Ketchell (2008) 236 CLR 101 (Hanks ref 569).

Inconsistency (Hanks, 570-611) The High Court has developed a series of tests to determine when inconsistency arises. The Court has recognised that there is considerable interrelatedness between the tests for so called direct and indirect inconsistency under s 109. However, in some cases one test of inconsistency may operate where others do not: R v Credit Tribunal, ex parte General Motors Acceptance Corporation (1977) 137 CLR 545. The tests are interrelated: Jemena Asset Management v Coinvest (2011) 244 CLR 508 (Hanks, 576). The focus in tests of direct inconsistency is on the operation of the statutes concerned. By contrast the concern in cases of indirect inconsistency is on the ascertainment of the intention of the Commonwealth Parliament. In many cases of inconsistency the parties may present alternative arguments based on both types of inconsistency in respect of the same legislation. Direct inconsistency Direct inconsistency has been held to occur where the two conflicting laws are incapable of simultaneous obedience: R v Licensing Court of Brisbane, ex parte Daniell (1912) 28 CLR 23 (Hanks, 570). In other words one law permits what the other forbids. In such circumstances there may be a direct textual collision between the laws (simultaneous obedience test). Interference in rights test Another species of direct inconsistency has been identified in circumstances where one law confers a right with which the other seeks to limit or interfere, but there is no direct textual collision: Clyde Engineering v Cowburn (1926) 37 CLR 466 (Hanks, 570-571): “Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other… 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) 68 CLR 151(Hanks, 581); WA v Commonwealth (Native Title case)(1995) 183 CLR 373 (Hanks, 603-604) Indirect inconsistency This type of inconsistency is determined through the application of the covering the field test, which was first stated by Isaacs J in Clyde Engineering v Cowburn (1926) 37 CLR 466 (Hanks, 571): “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.”

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The test requires an assessment of whether the Commonwealth law “evinces an intention” to state “completely, exhaustively and exclusively” what shall be the law on a particular subject: Ex parte McLean (1930) 42 CLR 472 per Dixon J (Hanks, 572-573): “[B]y prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends on 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. When a Federal law discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.” “vary, detract from or impair” (alternative formulation in Kakariki (1937) 58 CLR 618 per Dixon J (Hanks, 574-575): “When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.” The test then consists of several elements (Hanks, 580-581): (i) (ii) (iii)

identifying the field assessing whether the State law attempts to regulate the field, identifying how the Commonwealth may express its intention.

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The field: This element involves the characterisation of the Commonwealth law. This process can prove challenging. The evidence of the cases reveals examples of identification by the court of a broad field for Commonwealth laws (eg O’Sullivan v Noarlunga Meats Ltd) as well as narrower fields (eg Airlines of NSW v NSW (No 2) (1965) 113 CLR 54 However, the nature of the “field” may be one of the issues of disagreement between the parties.

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State regulation: In some cases, the Court has held that the State law makes no attempt to regulate the field of Commonwealth law: Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 per Stephen J (Hanks, 582-587) “The Victorian legislature has concerned itself quite generally with the social problem of discrimination based upon sex or marital status and occurring in a variety of areas of human activity. It has declared various manifestations of such discrimination to be unlawful. This is a subject matter upon which the Commonwealth’s Conciliation and Arbitration Act 1904 is understandably silent, silent because of its general irrelevance to the subject matter of that Act.” (Hanks, 584)

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Commonwealth intention:

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Native Title Act case : “If the Commonwealth intends to make a law the exclusive and exhaustive law upon a subject within its legislative power, 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 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…”

The Commonwealth’s intention in its legislation may be evinced: 1. expressly An express intention to provide a complete or exhaustive statement of the law on a subject will generally be clear from the words of the statute. However, the intention may be to provide a supplementary or cumulative statement of law. See Viskauskas v Niland (1983) 153 CLR 280 (Hanks, 588-589); “comprehensive code” Botany Council v Federal Airports Corporation (1992) 175 CLR 453 (Hanks, 589-591) 2. impliedly Where the Commonwealth’s intention is not explicit, the Court will look at •

the nature and scope of the federal law: Wenn v Attorney-General for Victoria (1948) 77 CLR 84 (Hanks, 601); See Australian Mutual Provident Society v Goulden (NB alter, impair or detract from test) (Hanks, 592-593)

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the level of detail contained in the provisions: See Ex parte McLean (1930) 42 CLR 472 O’Sullivan v Noarlunga Meat (See week 2 noes): “[The Commonwealth regulations] constitute an extremely elaborate and detailed set of requirements which must be complied with before registration can be obtained of premises to be used for the slaughter of stock for export.” and ABC v Industrial Court SA per Mason J (Hanks 582) and the nature of any penalties which are provided: R v Lowenthal, ex parte Blacklock (1974) 131 CLR 338 (Hanks, 594-595). Invalidity will not flow from every case of differential penalties in State and federal statutes: McWaters v Day (1989) 168 CLR 289 (Hanks, 596)

3. positively An express positive expression of intention was found in Wenn v Attorney-General for Victoria (1948) 77 CLR 84: “These provisions shall apply to the exclusion of ….State law….” “in spite of a law, or a provision of a law, of the State of New South Wales.”: Botany Municipal Council v Federal Airports Corp (Hanks, 589-591)

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4. negatively An express negative expression of intention was found in R v Credit Tribunal, ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 (Hanks, 605). The High Court noted that this statement of intention could not affect the presence of direct inconsistency in any way. See also University of Wollongong v Metwally (1984) 158 CLR 447 (Hanks, 606-611)

5. prospectively See Viskauskas v Niland (1983) 153 CLR 280 (Hanks, 588-589). 6. but not retrospectively The High Court held that attempts by the Commonwealth to overcome the effects of s 109 via amendments with retrospective effect were invalid in University of Wollongong v Metwally (1984) 158 CLR 447 ((Hanks, 606-611) Per Gibbs CJ (Hanks, 606-607): “If the respondents’ argument were correct, the Commonwealth Parliament could retrospectively reveal that the Commonwealth law had an intention, which it lacked at an earlier time, either to cover, or not to cover, the whole field, with the result that the State law would be retrospectively invalidated or validated. In other words, the Commonwealth law itself could vary the effect which s 109 had produced at the relevant time; it could give to a State law a valid operation as at a time when s 109 had rendered it invalid. But Commonwealth statutes cannot prevail over the Constitution….The Parliament has attempted to exclude the operation of s 109 by means of a fiction. The short answer to the submissions of the respondents is that the Parliament cannot exclude the operation of s 109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed not to have existed.” Cf Mason J

Invalidity (Hanks, 611) The concept that an inconsistent law will be invalidated through the operation of s 109 does not mean that the law is void ab initio: Carter v Egg and Egg Pulp Marketing Board (Victoria) (1942) 66 CLR 557 The High Court has held that “invalid” means that the law is “suspended, inoperative and ineffective”: Butler v Attorney-General of Victoria (1961) 106 CLR 268 (Hanks, 611). Hence it is possible that a law which is invalid may be revived in the event that the Commonwealth law is subsequently amended or repealed See Native Title Act case (1995) 183 CLR 373: “The effect on the State law is not produced directly by operation of the Commonwealth law but by s 109 of the Constitution, the operation of which is attracted by the inconsistency…

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Digest of Cases Airlines of New South Wales v New South Wales (No 1) (1964) 113 CLR 1 Airlines of New South Wales brought an action seeking, inter alia, declarations that the State Transport (Co-ordination) Act 1931 (NSW) in so far as it relates to aircraft was inconsistent with Commonwealth Air Navigation Act 1921 and Regulations, and that the plaintiff was not required to hold a licence or permit under the State Act so long as the Commonwealth Act was complied with. The High Court held that there was no inconsistency between the laws. Airlines of NSW v NSW (No 2) (1965) 113 CLR 54 The High Court held that the air licensing schemes established by the Commonwealth Air Navigation Regulations 1947 and Air Transport Act 1964 (NSW) were not inconsistent as they endeavoured to cover different “fields” as the licences were granted on the basis of quite different criteria. Butler v Attorney-General of Victoria (1961) 106 CLR 268 The High Court approved the dictum of Latham CJ in Carter v Egg and Egg Pulp Marketing Board (Victoria) that the meaning of “invalid” in s 109 meant “inoperative”. Upon the expiration of Part II of the Re-establishment and Employment Act 1945 (Cth) the provisions of the Discharged Servicemen’s Preference Act 1943 (Vic) became fully operative. Carter v Egg and Egg Pulp Marketing Board (Victoria) (1942) 66 CLR 557 No inconsistency was found between the Commonwealth Egg Control Regulations and the State Egg and Egg Pulp Marketing Board Regulations 1941 made under the Marketing of Primary Products Act 1935 (Vic). The Court held there was no intention on the part of the Commonwealth to exclude State legislation on eggs, and there had been no conflict in the operation of the laws. Clyde Engineering Company Ltd v Cowburn (1926) 37 CLR 466 An employee worked a 44 hour working week in accordance with the terms of the Forty Four Hours Week Act 1925 (NSW). His employer calculated his salary in accordance with an industrial award made under the Commonwealth Conciliation and Arbitration Act 1904, which provided for a 48 hour week. The employee sued for the balance of wages, which he argued, were owing. The High Court held that the State law was inconsistent with the terms of the Commonwealth award as interfering with rights and obligations imposed by the award. Isaacs J outlined the “covering the field” test of inconsistency in this case. Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 On a case stated, the High Court considered the inconsistency issues associated with a charge against a company under the NSW Factories and Shops Act 1912 of unlawfully employing a woman at a milling machine without a Ministerial permit. This provision was held to be inconsistent with an award made under the Commonwealth Conciliation and Arbitration Act 1904 which provided that women might be employed on milling machines. Ex parte McLean (1930) 42 CLR 472 McLean argued that s 4 of the Masters and Servants Act 1902 (NSW) was inconsistent with an industrial award made under the Commonwealth Conciliation and Arbitration Act 1904. Inconsistency was found in relation to differential penalties. Dixon J explained the “covering the field test” and the significance of Commonwealth intention. Mabo v Queensland (No 1) (1988) 166 CLR 186 The plaintiffs argued that the Queensland Coastal Islands Declaratory Act 1985 (Qld) which sought to extinguish traditional rights to land was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth) because the provisions of the State Act amounted to an arbitrary deprivation of legal rights in respect of property. The High Court upheld the plaintiffs’ argument. McWaters v Day (1989) 168 CLR 289 Page 6 of 8

Day, a member of the Australian Army was charged by McWaters with an offence under the Queensland Traffic Act 1949. The Commonwealth Defence Force Discipline Act 1982 (Cth) prescribed a greater penalty for the same conduct. The High Court held that there was no inconsistency between the two statutes as the Commonwealth’s intention in its legislation was to provide a scheme supplementary or cumulative upon the general law. O’Sullivan v Noarlunga Meats Ltd (1954) 92 CLR 565 Noarlunga Meats was charged with an offence under the South Australian Metropolitan and Export Abattoirs Act 1936. The case was removed to the High Court as a special case stated under s 40A of the Judiciary Act 1903. The High Court considered the question of inconsistency with Commonwealth Commerce (Meat Export) Regulations. The High Court held that the State and federal laws sought to regulate the same field of “slaughter of stock for export”, and that the State legislation was invalid as the Commonwealth intended to “cover the field”. R v Credit Tribunal, ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 The General Motors Acceptance Corporation commenced an action seeking a declaration that sections of the South Australian Consumer Credit Act 1972 and Regulations were inconsistent with the Trade Practices Act 1974 (Cth). The High Court held that as s 75 of the Trade Practices Act 1974 (Cth) evinced an intention that the Act not be an exhaustive statement of the law on the topic, and was not intended to exclude the operation of State laws, there was no inconsistency under s 109. R v Licensing Court of Brisbane, ex parte Daniell (1912) 28 CLR 23 Daniell, the owner of a Brisbane hotel, brought an action against the Licensing Court, seeking to overturn a decision to terminate her liquor license pursuant to a poll taken under the Liquor Act 1912 (Qld). The poll had been taken on the same day as the poll for election of Senators. The section of the Queensland Act was held to be inconsistent with the provisions of Commonwealth Electoral (War-time) Act 1917 (Cth). R v Lowenthal, ex parte Blacklock (1974) 131 CLR 338 Blacklock was indicted on charges of destruction of property under the Criminal Code (Qld). He had destroyed a plate glass door in a Commonwealth building used by Trans-Australia Airways and demurred to the charge. Blacklock argued successfully that the provision of the Queensland Criminal Code was inconsistent with s 29 of the Crimes Act 1914 (Cth). The High Court accepted that s 29 was intended to be an exhaustive provision as to damage to property belonging to the Commonwealth or to a public authority of the Commonwealth. University of Wollongong v Metwally (1984) 158 CLR 447 The University of Wollongong appealed against a determination by the NSW Equal Opportunity Tribunal of unlawful racial discrimination against a student. The University argued that the Tribunal had no power to inquire into complaints of discrimination as Part II of the NSW Anti-Discrimination Act 1977 was inoperative by reason of inconsistency as had been established in Viskauskas v ...