INCONSISTENCY AND REPUGNANCY OF LAWS
109. Inconsistency of laws 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.
Confirms the legislative supremacy of the Federal P over State P: Engineers’ case.
How is ‘law’ defined for the purposes of s 109?
Refers to State or Federal Acts: Engineers’ case. Also statutory rules/regulations made by State/Fed
executives exercising delegated legislative power.
Does not refer to common law – automatically abrogated by statute: Felton v Mulligan (1971) 124
Does not include administrative decisions made by public servants exercising executive powers:
Airlines of NSW v NSW (No 1) (1964) 113 CLR 1
o Eg. administrative directions including air navigation orders, aeronautical information
publications, notice to pilots.
Does not include Commonwealth Constitution: Re Colina; Ex parte Torney (1999) 200 CLR 386
Includes Federal industrial awards: Ex parte McLean (1930) 43 CLR 472
o Dixon J: Fed P’s authorisation of the court to make aware pursuant to Fed statute, in disregard
of State law provisions paramountcy to award.
Includes rules of court developed by courts as incident of their statutory jurisdiction: Flaherty v Girgis
(1987) 162 CLR 574
Includes Commonwealth law passed in relation to specific Territory under s122: Lamshed v Lake
(1958) 99 CLR 132
Requirement of valid and operative laws
If 1 or both laws are invalid no s109 inconsistency.
o Is the law within power
o Identify the head of power
o Characterise the law as a law with respect to the head of power OR
o Characterise as a law with respect to an incidental power
Must be operative in the circumstances: Butler v Attorney-General of Victoria (1961) 106 CLR 268
o Conflict over employment of ex-service personnel – but in 1961, Fed law had been repealed.
o “Federal Act can ‘prevail’ only whilst it remains in force”
Cannot deny operation of s109 in respect of past conflict of State/Fed laws:
o Viskauskas v Niland (1983) 153 CLR 280: HC held particular provisions of NSW Anti-
Discrimination Act 1977 inconsistent with Federal AD Act 1975.
o After decision Fed law amended to “be deemed never to have intended” to exclude s109.
o The University of Wollongong v Metwally (1984) 158 CLR 447: Commonwealth cannot
legislate with retrospective effect and “exclude operation of s109 by providing that the
intention of the P shall be deemed to have been different from what it actually was”.
Tests of inconsistency
Telstra v Worthing (1997) 197 CLR 61: two seminal principles/tests by Dixon J:
o When a valid State law would “alter, impair or detract from the operation of a law of the C
Parliament, then to that extent it is invalid”; OR
o “if it appears from the terms, the nature or the subject matter of a Fed enactment that it was
intended as a complete statement of the law governing a particular matter, then for a State law
to regulate same matter etc is regarded as detraction from full operation of the C law and so
4 principal tests for inconsistency:
Direct or textual collision
Impossibility of simultaneous obedience
Conferral of Rights
Cover the Field test
Direct’ or ‘textual’ collision
R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23: Fed electoral law held during Fed
polling days, no poll of any State or any part of State could be taken. Local vote in Brisbane Licensing
District taken on date of Federal poll. Held: Brisbane votes were illegal.
Mabo v Queensland (1988) 166 CLR 186: Qld Coast Islands Declaratory Act extinguished land
rights/compensation in Murray Islands. Mabo challenged on s109 that Act inconsistent with Fed RDA.
Held: Qld Act held invalid to the extent that it interfered with property rights on racial grounds (RDA).
The ‘impossible to obey both laws’ test
R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23: S (poultry processing business)
registered under Fed meat export regulations. In Sept 1960, lots of meat processed but only some
exported. BP said S breached Qld Poultry Industry Act 1946 – no license under the Act. S argued Qld
Act invalid with Fed regulations, impossible to obey both.
o HC held: Qld Act not invalid as Fed regulations applied to export. Thus, State law operate for
Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253: DC failed to pay employee
Macdonald minimum wage according to Vic law. DC argued that Vic law inconsistent with Fed award
which enabled DC to pay lower amount to M.
o Held: “Obedience to the one, the award, is disobedience to the other, the determination”.
Testing intention: the ‘cover the field’ test
Fed law covers the field if evinces express/implied intention to give exhaustive statement of rights etc
to subject matter. If so, then excludes any State law in field that alter, impair, hinder, obstruct, detract
C law: Stock Motor Ploughs Ltd v Forsyth; Victoria v Commonwealth; Telstra v Worthing.
Developed in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466: Fed award says 48
working week with certain rate of pay. State law say 44 hr week with higher rate of pay. Cowburn
claim under State. CE argue State law inconsistent with Fed law.
o Issacs J: if…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.
o Dixon J: depends upon the intention of the paramount legislature to express by enactment,
completely, exhaustively, or exclusively, what shall be the law
Applying the “cover the field” test:
1. whether Fed law evinces express/implied intention to cover the field
2. what is the “field” that has been covered
Express intention to cover field
Test: Fed law expresses intention to “completely, exhaustively or exclusively” occupy the field: Ex
parte McLean (1930) 43 CLR 472
Eg. Fed law state “where State law etc is inconsistent with, or deals with a matter dealt with in, a
Federal award, the latter prevails”: Metal Trades Industry Association v Amalgamated Metal Workers’
and Shipwrights Union (1983) 152 CLR 632
Express intention to NOT cover the field
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545: SA
consumer credit law challenged for inconsistency with Fed Trade Practices Act. But TPA stated that
“not intended to exclude or limit the concurrent operation of any law of a State or Territory”.
o Held: “make it clear that the C law is not intended to cover the field, thereby leaving room for
the operation of such State laws as do not conflict with C law”.
o State/Fed law not directly inconsistent Fed may express possibility of concurrent operation
BUT does NOT remove any direct inconsistency between State/Fed law.
o Provision in C law cannot displace operation of s109
o But if no direct inconsistency, where inconsistency only arise if C law is intended to be
exhaustive etc, a provision can avoid inconsistency
Implied intention to cover the field
If no express, can discern implied intention to cover field: Clyde Engineering Co Ltd v Cowburn (1926)
37 CLR 466
Consider nature, terms and subject matter of Fed law: Wenn v Attorney-General (Vic) (1948) 77 CLR
84 at 110.
If Fed law deals with topic in extensive, elaborate, complete, exhaustive detail implied: Ex parte
o Wenn v Attorney-General (Vic): W passed over for promotion on basis that he was not ex-
serviceman. State law gave ex-service men preference. W argued inconsistent with Fed law, which
did not explicitly require that preference. Held: Nature and scope of Fed provision implied
intention to cover field as “elaborate” provision on topic dealt ‘extensively and in detail”
o T A Robinson & Sons v Haylor (1957): State law guaranteeing long service leave inconsistent with
Fed law that made no provision. Rejected inconsistency. Held: existence of a “federal law area” is
not to be assumed – absence of elaborate etc no inconsistency
BUT in some cases, absence of elaborate etc intention to cover the field too! Breath of provision
o Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399:
Fed law gave ABC power over employment conditions of temp employees. SA jurisdiction for
employees unfairly dismissed.
HC held: SA inconsistent, even though Fed law was detailed about other provisions but not
Mason J: absence of detailed provision…is not an indication that is contemplated that other
laws will apply…but rather that the employer has unqualified authority
Intention may be manifest where Fed laws deal with Fed matters:
o Where C has exclusive power expected that C intends to exclude States.
o R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338: B criminally damaged door of Brisbane
office of Trans-Australian Airlines, trading arm of Fed Aus National Airlines Commission. B
argued that Qld Crim Code inconsistent with provision in Fed Crimes Act 1914, which specifically
prohibited destruction of C property.
Held: C exclusive power s52 over public places regarded as exhaustive
Finding the field:
Characterise laws – if different subject matters, may operate concurrently.
Airlines of NSW v NSW (No 2) (1965): State law govern intrastate nav and Fed law govern intrastate
air nav which affected overseas or interstate air nav. Both had licensing system. A licensed by Fed to
travel from Syd to Dubbo, but no State. Argued inconsistency.
o Held: Different subject matters. Fed law dealt with landings/departures at C airports and safety
etc of air nav. State law dealt with intrastate air nav, particularly license applicants.
Ansett Transport Industries (Operations) v Wardley (1980): Vic Equal Opportunity Act prohibit
discrimination inconsistent with Fed pilot award which required procedure of pilot dismissal, with no
reference to discrimination.
o HC held: Fed relate to conditions of employment termination, in context of State/Fed laws
about discrimination – no inconsistency.
Inconsistency of penalties not necessarily incon-sistency of laws
McWaters v Day (1989) 168 CLR 289: driving under influence has $1400 fine and 9 mths
imprisonment under Qld law, but Fed law 12 mths imprisonment for defence force members/civilians
to drive influenced on service land. M charged and argued only charged under Fed law.
o Held: State law not inconsistent impose supplementary obligations on defence force
o Mere fact that such differences exist is insufficient to establish an inconsistency. Still depends
upon intention of Cth to cover field and exclude other law.
BUT preferred approach: Hume v Palmer (1926) 38 CLR 441: H breached NSW Navigation Act for
sea traffic offence. Argued should be charged under Cth Nav Act and regulations as events occurred in
course of interstate trading journey.
o HC: laws inconsistent as “rules prescribed…for present purposes substantially identical, but the
penalties imposed for their contravention differ…”
Repugnancy of laws in the Territories
s109 does not apply to Territory laws.
Repugnancy in NT where Fed law post-dates NT law:
If Fed law does not express relationship with NT law determine if Fed law, by implication,
overrides NT law.
o Does Fed law make exhaustive/exclusive provision on subject?
o If not, apply the “direct inconsistency” tests.
o Northern Territory v GPAO (1999) 196 CLR 553.
Repugnancy in NT where Fed law pre-dates NT law:
Western Australia v Ward  HCA 28: Racial Discrimination Act 1975 (Cth) preceded NT Self-
o Power of NT Legislative Assembly (s6 of NTSGA) “subject to” RDA.
Repugnancy in the ACT
s28 ACT (Self-Gov) Act 1988 (Cth): specific test – ACT law has no effect if inconsistent with C law,
“but such a provision shall be taken to be consistent with such a law to the extent that it is capable of
operating concurrently with that (C) law”.
Narrower criterion of inconsistency than s109 – only tests operational inconsistency: NT v GPAO.
Invalidity — the consequences of s 109 inconsistency
Not permanently invalidated by s109 – only invalid in respect of particular facts of issue and situation.
“’invalid’…cannot be interpreted as meaning that a State law which is affected by the section becomes
ultra vires in whole or in part. If the C law were repealed, the State law would again become
operative”: Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557
Only invalid to extent of inconsistency and for so long as inconsistency remains: WA v The
Commonwealth (the Native Title Act case).
“It had merely been, for the time, invalid – that is to say, suspended, inoperative and ineffective –
because the C statute had entered into occupation of the whole field. But when the Commonwealth
vacated the field the State law was again in charge”: Butler v Attorney-General of Victoria (1961) 106