Inconsistency and Repugnancy of Laws

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of Victoria (1961) 106 CLR 268 o Conflict over employment of ex-service personnel – but in 1961, Fed law had been repealed.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