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Inconsistency between Commonwealth and Territory Laws

Published online by Cambridge University Press:  01 January 2025

Anne Twomey
Anne Twomey*
Affiliation:
University of Sydney
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Abstract

The rules concerning the inconsistency of Commonwealth and territory laws have been little explored and largely neglected. They rose to recent prominence in the challenge to the validity of the ACT's same-sex marriage laws. The ACT claimed that even if the Commonwealth's Marriage Act was intended to cover the field, the ACT's same-sex marriage law could still operate concurrently with it, because of the different application of inconsistency rules in the ACT. This article considers how inconsistency rules operate in the different territories, what was intended by the ACT inconsistency provision, how the High Court determined the issue, and whether a better explanation can be given for the outcome.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 3 , September 2014 , pp. 421 - 439
Copyright
Copyright © 2014 The Australian National University

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References

1 Commonwealth v Australian Capital Territory (2013) 250 CLR 441, 446 [53] (emphasis in original) (‘Same-Sex Marriage Case’).

2 Northern Territory v GPAO (1999) 196 CLR 553, 580 [53] (Gleeson CJ and Gummow J), 636 [219] (Kirby J).

3 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248, 274 (Brennan, Deane and Toohey JJ), 285 (Gaudron J) (‘Capital Duplicators Case’); Kruger v Commonwealth (1997) 190 CLR 1, 163 (Gummow J).

4 Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth).

5 Seat of Government Surrender Act 1909 (NSW); Seat of Government Acceptance Act 1909 (Cth).

6 Norfolk Island Act 1913 (Cth).

7 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582.

8 See, eg, Colonial Laws Validity Act 1865 (UK) ss 2–3.

9 See generally Leeming, Mark, Resolving Conflicts of Laws (Federation Press, 2011) 94–100.Google Scholar

10 (1929) 42 CLR 582, 588.

11 Webster v MacIntosh (1980) 49 FLR 317, 320 (Brennan J).

12 Phillips v Eyre (1870) 6 LR QB 1; R v Marais; Ex parte Marais [1902] AC 51; Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393, 410–11 (Isaacs J); Ffrost v Stevenson (1937) 58 CLR 528, 573 (Dixon J).

13 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, 573 (Latham CJ); Butler v Attorney-General (Vic) (1961) 106 CLR 268, 283 (Taylor J), 286 (Windeyer J); Western Australia v Commonwealth (1995) 183 CLR 373, 464–5 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

14 The division of inconsistency into categories of ‘direct inconsistency’ (where it is impossible to obey both laws or where one law alters, impairs or detracts from rights, obligations, powers, privileges or immunities conferred by the other) and ‘indirect inconsistency’ (where the Commonwealth law is intended to ‘cover the field’ to the exclusion of State laws) has been criticized. See, eg, Leeming, above n 9, 151-157. However, for the purposes of this article and explaining the distinction raised in the Same-Sex Marriage Case, this artificial distinction will be maintained.

15 Ffrost v Stevenson (1937) 58 CLR 528, 572 (Dixon J); University of Wollongong v Metwally (1984) 158 CLR 447, 464 (Mason J); Yougarla v Western Australia (2001) 207 CLR 344, 354–5 [17] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

16 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, 489 (Isaacs J); Ex parte McLean (1930) 43 CLR 472, 483 (Dixon J).

17 Hogg, Peter, Constitutional Law of Canada (Thomson Carswell, 5th ed, 2007) vol 1, 491–7 [16.4]Google Scholar; Gilbert, Christopher, Australian and Canadian Federalism 1867-1984 (Melbourne University Press, 1986) 137-151.Google Scholar

18 Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128, 136.

19 Northern Territory v GPAO (1999) 196 CLR 553, 581–2 [57] (Gleeson CJ and Gummow J).

20 Berwick Ltd v Gray (1976) 133 CLR 603. Mason J observed at 607 that s 122 of the Constitution is a plenary power which is ‘wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus’.

21 Capital Duplicators Case (1992) 177 CLR 248, 278–9 (Brennan, Deane and Toohey JJ). See also 290 (Gaudron J).

22 Ibid 282 (Brennan, Deane and Toohey JJ); 284 (Gaudron J).

23 Ibid 283 (Brennan, Deane and Toohey JJ). See also 284 (Gaudron J); Lindell, Geoffrey, ‘Grappling with Inconsistency between Commonwealth and State Legislation and the Link with Statutory Interpretation’ (2005) 8(2) Constitutional Law and Policy Review 25, 26.Google Scholar Note the criticism of the High Court's reasoning in Lindell, G and Mason, A, ‘The Resolution of Inconsistent State and Territory Legislation’ (2010) 38 Federal Law Review 391, 407.CrossRefGoogle Scholar

24 Attorney-General (Northern Territory) v Hand (1989) 25 FCR 345, 366-7 (Lockhart J); Commonwealth v Newcrest Mining (1995) 58 FCR 167, 179 (Black CJ and Foster J).

25 Northern Territory v GPAO (1999) 196 CLR 553, 636 [220]. See to similar effect University of Wollongong v Metwally (1984) 158 CLR 447, 463 (Mason J): ‘And in a federal context, where the conflict is between a statute of the federal legislature and a statute of a State or provincial legislature, the conflict is resolved in favour of the primacy of the federal statute, even in the absence of a provision such as s 109’. See also 467 (Murphy J).

26 Northern Territory v GPAO (1999) 196 CLR 553, 578 [45] – [46] (Gleeson CJ and Gummow J).

27 Ibid 579 [48].

28 Ibid 579 [49].

29 (1984) 158 CLR 395, 418–9.

30 (1989) 25 FCR 345, 366–7: ‘It is not a question of inconsistency between the two sets of laws which may otherwise be valid, rather it is a question going to the competency of the subordinate legislature to enact laws or to cause laws to operate in a manner inconsistent with or repugnant to laws of the paramount legislature’.

31 Leeming, above n 9, 235.

32 Norfolk Island Act 1979 (Cth) s 18.

33 Carney, Gerard, The Constitutional Systems of the Australian States and Territories, (Cambridge University Press, 2006) 464–6.CrossRefGoogle Scholar

34 Norfolk Island Act 1979 (Cth) s 21(6).

35 Ibid s 23.

36 Ibid ss 21–2.

37 Ibid s 27.

38 Department of the Interior, ‘Self-Government for the Australian Capital Territory’ (Commonwealth Government Printer, May 1967) 22 [94]. Note that the assumption about the exercise of delegated power was later overturned by the High Court in the Capital Duplicators Case, as discussed above.

39 Task Force on Implementation of ACT Self Government, ‘Advice to the Minister for Territories and Local Government’ (May 1984) 28 [5.11]. The report added that the degree of Commonwealth control over laws in the ACT would be ‘no less than in the Northern Territory’: 153 [5.6].

40 Gary Punch, ‘A Possible Model for ACT Self-Government – A Discussion Paper’ (13 April 1988, Minister for the Arts and Territories) <http://www.archives.act.gov.au/__data/assets/pdf_file/0006/562623/Possible_Model_for_ACT_Self-Govt.pdf>.

41 Commonwealth, ‘Self-Government in the Australian Capital Territory – Report of the Task Force’ (Australian Government Printing Service, March 1976) 7 [6.5], 9 [6.10].

42 Ibid 9 [6.10].

43 Note the many similarities in the provisions of the two bills.

44 Punch, above n 40, 6.

45 Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1988, 2423 (Neil Brown).

46 Commonwealth, Parliamentary Debates, Senate, 23 November 1988, 2591 (Robert Hill). See further the amendment made to s 12 of the Seat of Government (Administration) Act 1910 (Cth) by the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) sch 5.

47 Australian Capital Territory Council Bill 1986 (Cth) cl 42; Australian Capital Territory Self-Government Bill 1988 (Cth) cl 27. Note that most State and Imperial laws applying to the ACT were converted into ‘enactments’ by s 34 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and, therefore, excluded from the application of s 28.

48 Re the Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 351 [75] (Gummow and Hayne JJ).

49 Australian Capital Territory, ‘Annotated Submissions of the Australian Capital Territory’, Submission in Commonwealth v Australian Capital Territory, 25 November 2013, 3–6.

50 Note, however, an alternative argument that if the Commonwealth evinces an intention to cover the field to the exclusion of any State law, then it ‘provides for an immunity from a class of State laws, which immunity would be qualified, altered or impaired by, and is therefore inconsistent with, the operation of a State law within that class’: Leeming, above n 9, 142. Hence a direct inconsistency would apply.

51 Northern Territory v GPAO (1999) 196 CLR 553, 582–3 [60] (Gleeson CJ and Gummow J). See also Geoffrey Lindell, ‘The Arrangements for Self-Government for the Australian Capital Territory: A Partial Road to Republicanism in the Seat of Government? (1992) 3 Public Law Review 5, 11; D F Jackson and S J Gageler, ‘Joint Opinion – Re: Civil Partnerships Bill 2006 (ACT) Ex Parte: Australian Capital Territory’ (5 May 2008).

52 See, eg, Gumana v Northern Territory (2007) 158 FCR 349, 376 [103] (French, Finn and Sundberg JJ).

53 Palmdale-AGCI Ltd v Workers’ Compensation Commission (NSW) (1977) 140 CLR 236, 243 (Mason J; Barwick CJ, Stephen, Jacobs and Aickin JJ agreeing). See also R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (Australia) (1977) 137 CLR 545, 563–4 (Mason J).

54 Viskauskas v Niland (1983) 153 CLR 280, 292.

55 Ibid 292–3.

56 University of Wollongong v Metwally (1984) 158 CLR 447, 457–8 (Gibbs CJ), 469–70 (Murphy J), 474–5 (Brennan J), 479 (Deane J).

57 Ibid 456 (Gibbs CJ), 461 (Mason J), 469 (Murphy J), 483 (Dawson J).

58 Australian Constitutional Convention, Fiscal Powers Sub-Committee Report to Standing Committee (July 1984) 73 [4.34].

59 Proceedings of the Australian Constitutional Convention, Brisbane, July–August 1985, vol I, 421 (Resolutions Adopted).

60 Constitutional Commission, Final Report of the Constitutional Commission (Australian Governent Publishing Service, 1988), vol 2, [10.29].Google Scholar

61 Australian Constitutional Convention, Fiscal Powers Sub-Committee Report to Standing Committee (July 1984) 73 [4.37].

62 Australian Constitutional Convention, Fiscal Powers Sub-Committee Report to Standing Committee (July 1984) 74 [4.38].

63 Proceedings of the Australian Constitutional Convention, Brisbane, July-August 1985, vol I, 421, item B2P (Resolutions Adopted).

64 Constitutional Commission, Final Report of the Constitutional Commission (Australian Government Publishing Service, 1988), vol 2, [10.48].Google Scholar

65 Same-Sex Marriage Case 467, [50].

66 Northern Territory v GPAO (1999) 196 CLR 553, 583 [60] (Gleeson CJ and Gummow J).

67 Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 351 [75].

68 Northern Territory v GPAO (1999) 196 CLR 553.

69 Same-Sex Marriage Case 466–7 [54].

70 Northern Territory v GPAO (1999) 196 CLR 553, 582–3 [60] (Gleeson CJ and Gummow J), cited in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 351 [75] (Gummow and Hayne JJ).

71 Same-Sex Marriage Case 446 [53]

72 Ibid 466 [52]

73 See also Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) s 46.

74 For further examples, see, eg, Antarctic Treaty (Environment Protection) Act 1980 (Cth) s 7(5); Antarctic Marine Living Resources Conservation Act 1981 (Cth) s 6; Civil Aviation Act 1988 (Cth) s 98(7).

75 Note also the effect of such drafting in relation to the laws of the Northern Territory and Norfolk Island to which the repugnancy doctrine otherwise applies. It would appear to alter that doctrine, because it deals with the operative effect of such laws in the case of inconsistency, rather than the power to make and sustain the laws.

76 See, eg, Insurance Acquisitions and Takeovers Act 1991 (Cth) s 70. See also, for slightly different wording, s 5E of the Corporations Act 2001 (Cth): ‘The Corporations legislation is not intended to exclude or limit the concurrent operation of any law of a State or Territory.’

77 Compare the situation in Norfolk Island where Commonwealth laws are not intended to apply to Norfolk Island at all unless expressly so applied.

78 See also Quarantine Act 1908 (Cth) ss 87(1C), (1D).

79 Compare Parliamentary Entitlements Act 1990 (Cth) s 10(2), which deals with a clash between regulations and the determinations of the Remuneration Tribunal: ‘[w]here the regulations are intended to cover the whole field in relation to a particular subject matter, then … any provision of a determination that deals with that subject matter is taken to be inconsistent with the regulations, whether or not they are capable of operating concurrently.’ This appears to add more clarity to the position than most other provisions.

80 Note, however, that s 29 of the Norfolk Island Act 1979 (Cth) still uses the terminology of ‘invalidity’, so it is unclear whether it has made this switch. The other acts all refer to inconsistency and the effect of the law.

81 Leeming, above n 9, 240–1.

82 See, eg, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.

83 Explanatory Memorandum, Australian Capital Territory (Self-Government) Bill 1988 (Cth) 13.

84 See, for a similar approach, the reading down of Northern Territory legislation to avoid inconsistency under s 74 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in Gumana v Northern Territory (2007) 158 FCR 349, 376 [103].

85 Ffrost v Stevenson (1937) 58 CLR 528, 572 (Dixon J).

86 Phosphate Resources Ltd v Commonwealth (No 2) [2004] FCA 211 (11 March 2004), [21] (French J).