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The Nature of Inconsistency under Section 109 of the Constitution

Published online by Cambridge University Press:  24 January 2025

Gary A. Rumble
Gary A. Rumble*
Affiliation:
Faculty of Law, Australian National University
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Abstract

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments.

Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances.

The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.

Type
Research Article
Information
Federal Law Review , Volume 11 , Issue 1 , March 1980 , pp. 40 - 83
Copyright
Copyright © 1980 The Australian National University

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Footnotes

The author wishes to thank Professor L. R. Zines and Dr D. P. O'Connor, both of the Australian National University Law School, for their advice in the preparation of this article. The author, of course, takes full responsibility for any errors.

References

page 40 note 1 “The Tests for Inconsistency under Section 109 of the Constitution” (1979) 10 F.L. Rev. 25.

2 Id. 30.

3 Id. 25.

4 Id. 27.

5 (1926) 37 C.L.R. 466, 489.

6 Op. cit. 32.

7 (1930) 43 C.L.R. 472.

8 (1937) 58 C.L.R. 618.

9 Id. 630.

10 Dixon J. used the same formula in Stock Motor Ploughs Limited v. Forsyth with the narrow sense, (1932) 48 C.L.R. 128, 136-137. When used in the narrow sense, the formula is a test for indicating direct inconsistency.

11 S. 5l(i).

12 (1930) 43 C.L.R. 472.

13 Op. cit. 30-33.

14 (1930) 43 C.L.R. 472, 483.

15 (1926) 38 C.L.R. 441.

16 (1930) 43 C.L.R. 472, 483. Dixon appeared as counsel in Cowburn's case itself. He argued successfully that there was inconsistency, (1926) 37 C.L.R. 466, 470-471. The seeds of the Isaacs formula can be seen in the report of the submis-sions of Owen Dixon K.C. E.g. “[The provisions of the Commonwealth Act] disclose a clear intention that the arbitrator shall arrive at a conclusion as to what is the proper measure of rights and duties on matters which are the subject of dispute, and shall embody his conclusion in an award which shall have the force of law in respect of the parties [The State provisions] are simply amendments of the award, and for that reason are inconsistent with the Arbitration Act.” Id. 470. Also, more generally, “There is an inconsistency if there is a conflict between the wills of the two Legislatures.” Id. 471.

17 Mr Murray-Jones set out the Dixon version of the general theory. So far there is no disagreement with Mr Murray-Jones' analysis. Op. cit. 30-31.

18 (1930) 43 C.L.R. 472. 484.

19 Waterside Workers' Federation of Australia v. J.W. Alexander Ltd (1918) 25 C.L.R. 434.

20 Id. 462-463. Mr Murray-Jones made no mention of this part of the judgment of Dixon J. and, in fact, earlier in his article seemed to overlook Alexander's case completely when he said “for the purposes of section 109 an Award made by an arbitrator or other tribunal pursuant toan Act of Parliament is a 'law'”. Op. cit. 27.

21 (1930) 43 C.L.R. 472, 484.

22 (1926) 37 C.L.R. 466.

23 (1930) 43 C.L.R. 472, 484.

24 Id. 484-485. Mr Murray-Jones was still silent.

25 Id. 485. At this point, this article and Mr Murray-Jones' article enter a phase of complete disagreement. It is this writer's contention that Mr Murray-Jones' discussion on p. 31 from the words “however his Honour held ... “ to the end of the page represents a basic misunderstanding of the judgment of Dixon J.

26 Id. 487.

27 Id. 485. Emphasis added. Mr Murray-Jones also set out this passage but attributed to it quite a different meaning. He thought that Dixon J. was proferring it as a new category of inconsistency different from the cover the field doctrine. Op. cit. 318. It is difficult to see how that construction can be put on the passage if account is taken of the italicised words.

28 As Mr Murray-Jones would have it.

29 E.g. s. 51 (i) gives power with respect to activities of overseas trade.

30 Mr Murray-Jones was under the impression that Dixon J. based his decision on the passage set out. Op. cit. 31. It seems to this writer that the situation was quite the contrary.

31 (1930) 43 C.L.R. 472, 485.

32 Id. 485-486.

33 Discussed further infra pp. 49-50.

34 (1930) 43 C.L.R. 472, 473.

35 Id. 486-487.

36 (1943) 68 C.L.R. 151, 159.

37 Op. cit. 47.

38 Discussed further infra p. 47.

39 E.g. Airlines [No. 2] (1965) 113 C.L.R. 54.

40 Supra p. 44.

41 (1966) 115 C.L.R. 418.

42 Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 C.L.R.1.

43 Latham C.J. never accepted this principle. “It is not enough that a law should refer to the subject matter or apply to the subject matter”, Banking case (1948) 76 C.L.R. 1, 186. According to his Honour, not only did a law have to be within power in the way it operated in “creating, changing, regulating or abolishing rights, duties, powers or privileges”, it also bad to be substantially, id. 187, even if not predominantly, id. 185, concerned with the subject matter. This alternative approach to characterisation/classification may go some way to explain why bis Honour felt compelled in the passage from Colvin v. Bradley Brothers Pty Ltd (1943) 68 C.L.R. 151, 159, that was discussed supra p. 45, to reject the “classification” of the State law as being in any way relevant to questions of inconsistency.

44 In North Eastern Dairy Co. Ltd v. Dairy Industry Authority of New South Wales (1974) 134 C.L.R. 559 the members of the Court brought the practical operation of the law to the forefront of their discussions.

45 (1953) 87 C.L.R. 1, 17-18. Also 0. Gilpin Ltd v. Commissioner for Road Transport and Tramways (New South Wales) (1935) 52 C.L.R. 189, 204-206. His Honour occasionally deviated from this doctrine. E.g. in Fish Board v. Paradiso (1956) 95 C.L.R. 443, his Honour joined a joint judgment which looked to practical effects when determining whether a law directly operated on interstate trade, id. 453. In Mansell v. Beck Dixon C.J. joined with Webb J. in an approach which looked to the purpose of a law to find it did not “directly” operate on interstate trade even though on the formula set out in the text the law was directly affecting interstate trade. (1956) 95 C.L.R. 550 especially 566.

46 (1962) 107 C.L.R. 46.

47 Id. 64. The case was decided by Dixon J., id. 51-57, with the agreement of Kitto, Taylor and Owen JJ., id. 61, 61 and 72 respectively, on the basis that the Commission, although not technically within the shield of the Crown in right of the Commonwealth, was an “agent” of the Commonwealth. Especially id. 54-55 per Dixon C.J. Their Honours' essential reasoning was that a power to create a corporation (to act on behalf of the Commonwealth) necessarily carried with it power to protect that corporation from incurring State tax liability by carrying out its activities, id. 56.

48 Id. 64.

49 Id. 68.

50 Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 C.L.R. 1.

51 Infra p. 51.

52 (1930) 43 C.L.R. 472, 485-486. Supra p. 45.

53 Ibid.

54 Industrial disruption may provide evidence of, but is not itself, an industrial dispute. Caledonian Collieries Cases [No. 1] (1930) 42 C.L.R. 527; [No. 2] (1930) 42 C.L.R. 558.

55 S. 51(xxxv) only gives power with respect to industrial disputes. The dispute must relate to the master /servant relationship, ex parte Melbourne and Metropolitan Tramways Board (1966) 115 C.L.R. 443.

56 Clyde Engineering Co. Ltd v. Cowburn (1927) 37 C.L.R. 466, 491 per Isaacs J.

57 Whether of the kind implied in each express grant of power, or that power granted ins. 51(xxxix).

58 E.g. D'Emden v. Pedder (1904) 1 C.L.R. 91, 109-110; Grannall v. Marrickville Margarine Pty Ltd (1955) 93 C.L.R. 55, 11 per Dixon C.J., McTiernan, Webb and Kitto JJ.

59 Airlines [No. 2] (1965) 113 C.L.R. 54.

60 Id. especially 128-132 per Taylor J.

61 Compare O'Sullivan v. Noarlunga Meat Ltd (1955) 92 C.L.R. 565 (High Court) with O'Sullivan v. Noarlunga Meat Ltd [1957] A.C. 1, 29; 95 C.L.R. 177, 186-187 (Privy Council). Cf. Australian Coastal Shipping Commission v. O'Reilly (1962) 107 C.L.R. 46, 62 per Menzies J.

62 (1955) 92 C.L.R. 565.

63 Id. 598.

64 Ibid.

65 Op. cit. 46.

66 Supra p. 45.

67 Supra p. 47.

68 Infra pp. 59-62.

69 (1930) 43 C.L.R. 472, 483 citing Hume v. Palmer (1926) 38 C.L.R. 441.

70 (1930) 43 C.L.R. 472, 483. This principle could not be directly applied in ex parte McLean itself because of the nature of the power involved. Ibid. There was a similar kind of inconsistency but it depended on finding not only that the elements of the Commonwealth and State offences were substantially similar (under the State law the offence consisted of failing to perform a contract of employment, under the Commonwealth law the offence consisted of failing to comply with an obligation under an award to perform a contract of employment) with differing penalties, but also on finding that the State law had entered the field of industrial relations exclusively covered by the Commonwealth. Id. 485-486.

71 (1937) 58 C.L.R. 618, 630. Discussed supra p. 41.

72 Op.cit. 49.

73 (1956) 94 C.L.R. 254.

74 (1930) 43 C.L.R. 472, 483.

75 (1926) 38 C.L.R. 441.

76 (1926) 37 C.L.R. 466, 489.

77 Ibid. Isaacs J. at this stage was hypothesising identical offences (with different penalties) made by successive Acts of the same Parliament. The point of his discussion was that the resolution of the question of whether both punishments should be inflicted through ascertainment of the intention in the second (and therefore dominating) Act gave the clue as to how to resolve a situation where the Acts creating the identical offences were Acts of the different Parliaments of a State and the (dominant) Commonwealth.

78 (1930) 43 C.L.R. 472, 483.

79 The significance of difference in penalties is discussed infra pp. 56 ff.

80 (1974) 131 C.L.R. 338.

81 Id. 343.

82 The situation did not actually call for a direct application of s. 109. S. 52 of the Constitution prevents State laws applying to Commonwealth places such as the airport where the door was allegedly broken. Worthing v. Rowell and Muston Pty Limited (1970) 123 C.L.R. 89. Mason J. explained that the limited application of State law to Commonwealth places made by s. 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ultimately brings the question back to the meaning of “inconsistency” in s. 109. (1974) 131 C.L.R. 338, 345. Section 4(2) provides: This section does not (a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places.

83 Id. 340, 340, 344 respectively. Barwick C.J. and Mason J. commented further that even if they were not, the State court had adequate jurisdiction to amend. Id. 340, 345 respectively.

84 Jacobs J. dissented on the ground that the indictment could not be treated as a basis for a trial of the Commonwealth offence as it did not, in his opinion, follow the form required by Commonwealth law. Id. 348. Curiously, Menzies J. felt he could discharge the applications without having to decide whether the indictment satisfied Commonwealth requirements. Id. 343.

85 Id. 342-343.

86 Op. cit. 49.

87 (1974) 131 C.L.R. 338, 340, 347-348 respectively.

88 Op. cit. 49.

89 (1974) 131 C.L.R. 338, 346-347.

90 Infra p. 71.

91 Op. cit. 49.

92 (1930) 43 C.L.R. 472, 483 supra p. 53.

93 Ibid.

94 Hume v. Palmer (1926) 38 C.L.R. 441.

95 (1926) 37 C.L.R. 466, 489.

96 Supra pp. 55-56.

97 (1926) 37 C.L.R. 466, 489.

98 Supra p. 53.

99 (1926) 37 C.L.R. 466, 489.

page 58 note 1 Which of these options would in fact satisfy the punishments depends on how the word “imprisonment” is construed in the respective statutes. Infra pp. 65-66.

2 We have referred to some of the factors relevant to this question when treated as a question for the covering the field doctrine. Supra pp. 52-53.

3 Infra pp. 66-68.

4 (1977) 137 C.L.R. 545, 563.

5 Supra pp. 55-56.

6 (1977) 137 C.L.R. 545, 563.

7 On this view, the “inconsistency” would be the same even if the penalties were “identical”.

8 Discussed further infra pp. 64-66.

9 Victoria v. Commonwealth (1937) 58 C.L.R. 618. I am at this stage expanding a point made by Mr Murray-Jones, op. cit. 48.

10 Navigation Act 1912, s. 329 (Cth); Marine Act 1928, s. 13 (Vic.).

11 (1937) 58 C.L.R. 618, 631.

12 Ibid. Similarly 626 per Latham C.J. and 628 per Starke J. Rich J. agreed with the judgment of Dixon J., 626. McTiernan J. preferred not to comment on the possibility of conflicting exercise of power 638-640. Evatt J. came to conclusions similar to those of Dixon J., but also discussed inter-governmental immunity, 637.

13 Supra p. 53. Also Acts Interpretation Act 1901, s. 30 (Cth). Infra pp. 68-70.

14 Annamunthodo v. Oilfield Workers' Trade Union [1961] A.C. 945.

15 (1976) 134 C.L.R. 56.

16 I say “it would seem to follow” as the case did not involve such express preservation in a Commonwealth Act. The “express preservation” was contained in a Commonwealth award.

17 Supra pp. 55-56.

18 (1974) 131 C.L.R. 338, 347.

19 Ibid.

20 Ibid.

21 (1977) 137 C.L.R. 545.

22 Id. 563-564.

23 Id. 552, 552, 565 respectively.

24 Id. 552.

25 Id. 563.

26 Op. cit. 40.

27 Supra p. 56.

28 (1977) 137 C.L.R. 545, 564.

29 It must be admitted that it would seem on reading his judgment in Loewenthal that the momentum of his declarations about the inadequacy of Commonwealth power may have carried him through to his conclusions about how to construe s. 11 ands. 30(2).

30 Supra p. 60.

31 (1930) 43 C.L.R. 472, 485-486.

32 Supra p. 45.

33 R. v. Hull (No. 2) [1902] St.R.Qd. 53, 57-58, Cooper and Real JJ. concurring. Mr Murray-Jones did not seem to have taken account of this distinction. Op. cit. 48.

34 Supra p. 53.

35 Infra p. 76.

36 Such an act is within the centre of s. 5l(i).

37 Unless the Commonwealth had both power and intention to cover the field of liability arising from the doing of the act in question. On my hypothesis the Commonwealth does not so intend.

38 [1971] V.R. 844, 846-847. Also Kidd v. R. [1972] V.R. 728, 731 where the same Court requested more guidance from the Commonwealth especially in the matter of reconciling cumulative sentences with parole matters.

39 [1975] Qd.R. 301, 308-324.

40 Also D.P.P. v. Connelly [1964] A.C. 1254. Generally, Grant, “Successive Prosecution by State and Nation: Common Law and British Empire Comparisons” (1956) 4 University of California (Los Angeles) Law Review 7, especially 24-28. For the Canadian and United States position, Friedland, Double Jeopardy (1969) especially 405-428.

41 Communist Party case (1951) 83 C.L.R. 1, 189 per Dixon J. and Murphyores Incorporated Pty Ltd v. Commonwealth (1976) 136 C.L.R. 1.

42 Supra pp. 52 ff.

43 D.P.P. v. Connelly [1964) A.C. 1254.

44 R. v. Buzzart (1884) 5 L.R. (N.S.W.) 419; 1 W.N. 73; R. v. Lee (1895) 16 L.R. (N.S.W.) 6; 11 W.N. 121; R. v. McLellan (1874) 15 L.R. (N.S.W.) 42; 11 W.N. 73. Halsbury (4th ed.) XI, para. 242. Also generally Friedland, op. cit. 62-75.

45 An initial question with “issue estoppel” would be whether for the purposes of this doctrine the Crown in right of a State and the Crown in right of the Commonwealth are to be identified so as to be bound by proceedings involving the other. The doctrine only binds “parties” to the earlier action. Friedland, op. cit. 418-419.

46 Especially as it applies common law doctrines in relation to offences not acts.

47 The reference to an “Ordinance of a Territory” includes Northern Territory Acts, Northern Territory (Self-Government) Act 1978, s. 67.

48 S. 16 provides Person not to be Twice Punished for Same Offence- A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission. Discussed in R. v. Gordon; ex parte Attorney-General [1975] Qd.R. 301.

49 Before s. 30 was amended in 1937 to its present form there used to be a section, s. 25, in the Act which prohibited prosecution of a State or common law offence after punishment for the same Commonwealth offence (and vice versa). Discussed in R. v. McNicol [1916] V.L.R. 350, 354 per Madden C.J.

50 Bailey, “Inconsistency with Paramount Law” (1939) 2 Res Judicatae 9, 19.

51 [1946] St.R.Qd. 152.

52 Id. 155 per E. A. Douglas J. with Philp and Matthews JJ. in agreement, 158 and 159 respectively.

53 Infra p. 76.

54 (1977) 137 C.L.R. 545, 563.

55 Supra p. 61.

56 (1977) 137 C.L.R. 545, 564.

57 Op. cit. 33-40.

58 Id. 40.

59 (1978) 22 A.LR. 119.

60 Id. 125.

61 Id. 127.

62 Id. 123. The drawing of this distinction was not necessary to his Honour's decision. The statement was made to emphasise the width of “inconsistency” and as a prelude to “demonstrating” the existence of inconsistency under both heads.

63 Per Mr Murray-Jones, op. cit. 40.

64 (1974) 131 C.L.R. 338, 346-347.

65 Supra pp. 55-56.

66 This is not a new argument. See the delightful discussion of Tammelo in “The Tests of Inconsistency Between Commonwealth and State Laws” (1957) 30 A.L.J. 496.

67 Cf. Tammelo, id. 498-499.

68 (1932) 48 C.L.R. 128.

69 Id. 135.

70 Id. 143.

71 (1977) 140 C.L.R. 236.

72 Id. 239-246, Barwick C.J., Stephen, Jacobs and Aickin JJ. concurring, 239, 239, 246 and 246 respectively.

73 Id. 241-242.

74 Insurance Acts 1973, s. 38 (Cth).

75 (1977) 140 C.L.R. 236, 241 per Mason J.

76 Id. 245 per Mason J.

77 Ibid.

78 Ibid.

79 (1977) 137 C.L.R. 545.

80 Consumer Credit Act 1972-1973, s. 40 (S.A.).

81 Trade Practices Act 1974, s. 52 (Cth).

82 Murphy J. merely made a general statement that the Commonwealth did not intend to cover the field, (1977) 137 C.L.R. 545, 565.

83 Id. 559-560.

84 Id. 561.

85 Ibid

86 (1925) 36 C.L.R. 170.

87 Knox C.J., Higgins and Starke JJ., Isaacs and Rich JJ. dissenting.

88 (1925) 36 C.L.R. 170, 182 per Knox C.J. In so far as the case decided that the State may bind Commonwealth servants carrying out theirfunctions, it may have to be reappraised to take account of the statements made by Fullagar J. with the agreement of Dixon C.J., Webb and Kitto JJ. in Commonwealth v. Bogle (1953) 89 C.L.R. 229, 259, to the effect that the States have no power over the Crown in right of the Commonwealth. The case is, nevertheless, useful for the purposes of my s. 109 discussion.

89 Pidoto v. Victoria (1943) 68 C.L.R. 87, especially 109-110 per Latham C.J.

90 Op. cit. 42-47.

91 “It [the Commonwealth Bills of Exchange Act] is not a statutory expression of any design or plan conceived or policy devised by the legislature.It is an attempt to convert a part of the lex non scripta into lex scripta.” (1932) 48 C.L.R. 128, 137.

92 Covering clause V provides: “This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.”

93 When s. 109, or rather cl. 101 of the Bill as it then was, was being considered in Melbourne in 1898, Symon Q.C. explained its function thus: “Clause 101 is merely declaratory The clause is necessary to establish in the Constitution the principle that where the Commonwealth legislates within its legislative power its laws must prevail.” Debates of the Australasian Federal Convention Third Session, 643. Similarly A.B.C. v. Industrial Court (S.A.) (1977) 138 C.L.R. 399, 418 per Murphy J.

94 Loewenthal's case (1974) 131 C.L.R. 338, 346 per Mason J.

95 G.M.A.C. case (1977) 137 C.L.R. 545, 563 per Mason J. Also Tammelo, op. cit. 498-499, ' the logical criterion of the inconsistency between Commonwealth and State laws is their contradiction.”

96 Miller v. Miller (1978) 22 A.L.R. 119, 123 per Barwick C.J.

97 Compare Bailey, “Inconsistency with Paramount Law” (1939) 2 Res Judicatae 9, 9: “Etymologically the meaning of 'inconsistency' is plain and undisputed. It denotes contrariety, contradiction, repugnancy, discordance: such a contrariety between two propositions, for example, that they cannot both stand, or be true together.”

98 (1926) 37 C.L.R. 466, 491.

99 R. v. Clarkson; ex parte General Motors-Holden's Pty Limited (1976) 134 C.L.R. 56. Discussed supra p. 60.

page 79 note 1 Cf. Wenn v. Attorney-General (Vic.) (1948) 77 C.L.R. 84.

2 Australian Coastal Shipping Commission v. O'Reilly (1962) 107 C.L.R. 46, 56-57 per Dixon C.J. Emphasis added.

3 Generally, West v. Commissioner of Taxation (N.S.W.) (1937) 56 C.L.R. 651; Wenn v. Attorney-General (Vic.) (1948) 77 C.L.R. 84; Zines, “Sir Owen Dixon's Theory of Federalism” (1965) 1 F.L. Rev. 221; Payroll Tax case, Victoria v. Commonwealth (1971) 122 C.L.R. 353.

4 (1980) 28 A.L.R. 449.

5 There were other questions of inconsistency involved.

6 (1980) 28 A.L.R. 449, 479.

7 Id. 455.

8 Id. 454.

9 Id. 459.

10 Id. 464.

11 Ibid.

12 Id. 479 per Aickin J.