Week 8 - Inconsistency of Laws PDF

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Australian Constitutional Law – Autumn, 2019

Reading Log – Questions (Week 8)

A) S. 109 – Inconsistency Between Commonwealth and State Laws 1. What is the purpose of s. 109? In a contest between conflicting Commonwealth and State law, to which party does s. 109 purport to give power? What is the difference between the terms, ‘prevail’ and ‘invalid’? Section 109 provides clarification for when laws between the commonwealth and the state conflict. Section 109 gives power to the Commonwealth to prevail when conflict exists. Prevail – Invalid – 2. What two things must exist before it can be said that there is a conflict of laws or s. 109 dispute? How is the process of characterisation relevant here? -

Commonwealth and state laws need to be valid

3. There are three tests of inconsistency. What are they? Which particular conflicts of law does each test respectively cover? - Direct inconsistency o Dual obedience rule: the two laws have contradictory provisions on the same subject matter, rendering it impossible to comply simultaneously with the duties or obligations imposed by both laws o Rights and duties rule: Where one law take away or modifies a right or privilege conferred by the other (Australian Boot Trades Employees (Fed) v Whybrow) - Indirect inconsistency – Where the Commonwealth intended to cover the field and a State law purports to legislate in that field. There are three questions: o What is the field? o Did the Cth. intend to cover the field? o Did the State law enter the field? 4. Must the conflict between Commonwealth and State law be significant in order for the High Court to intervene using s. 109 and, if so, how significant? - Real and significant not trivial 5. What is the ‘cover the field’ test? To which type of conflict of laws or category of inconsistency does it apply? What were the facts in Clyde Engineering v Cowburn (1926)? How was the ‘cover the field’ test articulated in this case? How was this test modified in Ex parte McLean (1930)? -

Cover the field – intended to regulate anything under a certain area and exclude any one else to make a law about it. Clyde Engineering v Cowburn: Cth made a law having a 48-hour week and NSW wanted to have it as 44 hours, Court found the NSW act invalid to the extent of inconsistency.

Australian Constitutional Law – Autumn, 2019 -

Reading Log – Questions (Week 8)

Dixon: depends upon on the intention of the Commonwealth governing exclusively – intend to the cover the field.

6. In Ansett Transport Industries v Wardley (1980), why did Ansett Airlines refuse to employ Ms Wardley? Why did the cover the field test not apply? In AMP v Goulden (1986), why did AMP refuse to amend Mr Goulden’s insurance policy? Which test of inconsistency did the High Court apply in this case? -

Ansett did not hire Deborah Wardley as she was a female pilot – there was no indirect consistency AMP v Goulden refused insurance as he was blind

7. What did the NSW State Government seek to do in APLA Ltd v Legal Services Commissioner (NSW) (2005)? What did Justice Kirby say was the relevance of s. 109 inconsistency in this case? Which test of inconsistency did he apply? Do you agree that this was a matter of inconsistent State and Commonwealth law (given the consequences if it was found not to)? - NSW prohibited lawyers from advertising for personal injuries etc. - J Kirby said there was an inconsistency

8. What is ‘manufactured inconsistency’? To which test of inconsistency does it apply? What were the facts in Wenn v AG (Vic) (1948)? Why did the High Court refuse to recognise manufactured inconsistency in this case? -

This applied to the cover the field test – where there is inconsistency

9. What happened in Bayside City Council v Telstra (2004)? Why are arguments of ‘manufactured inconsistency’ likely to be treated as issues about characterisation? What are the political consequences of this? In the WorkChoices Case (2006), why did the majority suggest that the Commonwealth was not manufacturing inconsistency? Telstra and Optus challenged the VIC and NSW council the power to impose charges for underground or above ground telecommunication cables. They arguedthat the charges were discriminatory within the meaning of Cl 44 of the Telecommunications Act 1997 (Cth)...