Inconsistency and Repugnancy of Laws
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 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of Victoria (1961) 106 CLR 268 o Conflict over employment of ex-service personnel – but in 1961, Fed law had been repealed.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
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