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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
  CLR 367
 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      o Conflict over employment of ex-service personnel – but in 1961, Fed law had been repealed.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
           surplus poultry.
 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
    McLean (1930).
    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
            temp employees.
         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
           members etc.
       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 [2002] HCA 28: Racial Discrimination Act 1975 (Cth) preceded NT Self-
   Government Act.
      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
   CLR 268

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