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Published online by Cambridge University Press: 24 January 2025
It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His contribution to the study of Australian constitutional law is too well known to require any reinforcement from us. It spans a period of five decades. His principal book The High Court and the Constitution has been and continues to be at the forefront of constitutional scholarship since it was first published. That book and his other writings represent the distilled essence of much of his valuable and incisive understanding of the way the High Court interprets and should interpret, the Constitution – something which has held a life-long fascination for him. In his publications as in his many years of teaching, he displays not only a mastery of the technical and analytical aspects of public law, but a social and functional awareness that goes well beyond deriving the meaning and application of many provisions of the Constitution by the mere contemplation of the language used or by the canons of construction.
1 (5th ed, 2008). The earlier editions were published in 1981, 1987, 1992 and 1997.
2 (1989) 168 CLR 340, 374 ('Port MacDonnell’) even though the Court uses the term ‘nexus'.
3 See State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 285–6 and n 126 (McHugh and Gummow JJ) ('State Authorities’) where the distinction was drawn between conflict in the constitutional sense and in the sense known in conflict of laws.
4 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 528 [44] ('Pfeiffer’).
5 See generally Geoffrey, Lindell, ‘Grappling with inconsistency between Commonwealth and State legislation and the link with statutory interpretation’ (2005) 8 Constitutional Law and Policy Review 25, 2730Google Scholar.
6 (1996) 189 CLR 253, 286.
7 Ibid.
8 ‘Sources of Legal Authority’ in Jesting Pilate (1965) 198, 201.
9 (1996) 189 CLR 253, 286.
10 Australia Act 1986 (Cth) s 2. See also Australia Act 1986 (UK) c 2, s 2.
11 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1, 14 ('Union Steamship’); Port MacDonnell (1989) 168 CLR 340, 372; State Authorities (1996) 189 CLR 253, 286; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 223 [9][10], 334 [45][48] ('Mobil Oil’); Sweedman v Transport Accident Commission (2006) 226 CLR 362, 405 [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ) ('Sweedman’).
12 Union Steamship (1988) 166 CLR 1, 14.
13 Port MacDonnell (1989) 168 CLR 340, 374.
14 Sweedman (2006) 226 CLR 362, 406 [48] and 407 [52] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
15 For example, Interpretation Act 1987 (NSW) s 12.
16 For example, Wanganui-Rangitikei Electric Power Board v AMP Society (1934) 50 CLR 581, 6001 (Dixon J).
17 See the following sub-paras, particularly with reference to sub-para (4)(b) below.
18 For the purposes of this essay we have assumed that as the law stands at present those principles apply subject to some modifications to intra-national conflicts cases. Although we do not develop the point further in this essay common law choice of law principles were developed in order to identify the applicable law in situations in which it was necessary to decide between the competing laws of different national jurisdictions. It is doubtful whether the application of legislation of a sister State in a federation should be determined by its characterisation as falling within an existing category of law as occurred for example in Sweedman (2006) 226 CLR 362 (restitution). The choice of law principles are in many cases inappropriate and ill-suited to resolve choice of law questions within a national legal system which has been described as a single law area — a description which must be at least accurate in regard to the application of the Australian common law: Lipohar v The Queen (1999) 200 CLR 485, 513 [67], 517 [80], 522 [92], 531 [111]–[112], 532 [115] ('Lipohar’).
19 This source of law, like the preceding source, is subject to forum legislation that must also be applied by reason of the provisions referred to in the accompanying text: eg, Blunden v Commonwealth (2004) 218 CLR 330, 339 [18]. This leaves open the existence of possible inconsistent legislation which courts exercising federal jurisdiction would have to resolve. The main provisions of the sections referred to in the text read as follows:
Section 79(1): The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable…
Section 80: So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
20 A possible illustration is provided in the national cross-vesting legislation in its application to the cross-vesting of jurisdiction between the Supreme Courts of the States and Territories, and the law to be applied in the exercise of such jurisdiction in relation to claims arising under sister State or Territory legislation: eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (Cth) ss 4 and 11(1)(b) which, however, are not free from difficulty: David Syme & Co Ltd v Grey (1992) 38 FCR 303, 327–31 (Gummow J). Those difficulties aside, the same source is used in this and other federal cooperative schemes which helps to minimise but not avoid altogether the problems caused by inconsistent State and Territory legislation. Under such schemes legislation in one jurisdiction can operate in other jurisdictions with the consent and by virtue of the authority of those jurisdictions. But even with those schemes the consenting jurisdiction may subsequently withdraw its consent either expressly or by implication.
21 See, eg, Kemp v Piper [1971] SASR 25, 29 (Bray CJ).
22 This was referred to as constitutional inconsistency in the authority cited above n 3. For a possible example of legislation in (b) see above n 20.
23 Above text accompanying n 8. See also Mobil Oil (2002) 211 CLR 1, 25 [15] where Gleeson CJ referred to ‘State legislative, executive and judicial power’ as being ‘territorially based'. An American writer has suggested that the ‘fundamental allocation of authority among states is territorial’ and that ‘a state's claim to regulate behaviour or govern a dispute must be based on some thing or event within its territory': Douglas, Laycock, ‘Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law’ (1992) 92 Columbia Law Review 249Google Scholar, 251.
24 Above n 15 and accompanying text.
25 Mobil Oil (2002) 211 CLR 1, 22–3 [9]–[10], 33–4 [45]–[48]; Sweedman (2006) 226 CLR 362, 405 [43].
26 Mobil Oil (2002) 211 CLR 1, 26 [16] (Gleeson CJ), 36 [57] (Gaudron, Gummow and Hayne JJ); Sweedman (2006) 226 CLR 362, 395 [2], 398 [18] (Gleeson CJ, Gummow, Kirby and Hayne JJ) but cf Callinan J in dissent who favoured greater limitations on the power to legislate extraterritorially.
27 Sweedman (2006) 226 CLR 362, 405 [43]; Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 ('Brownlie’); and for a discussion of those questions see Mark, Leeming, ‘Resolving Conflicts between State Criminal Laws’ (1994) 12 Australian Bar Review 107, 112–5Google Scholar.
28 Pfieffer (2000) 203 CLR 503, 535 [67].
29 Union Steamship (1988) 166 CLR 1, 14; Mobil Oil (2002) 211 CLR 1, 223 [9], 34 [48].
30 Lipohar (1999) 200 CLR 485, 534–5 [121]–[123] (Gaudron, Gummow and Hayne JJ) and 552–3 [170] (Kirby J).
31 Above n 12 and described as ‘somewhat vague and ill defined’ in Mobil Oil (2002) 211 CLR 1, 24 [13] (Gleeson CJ). The probable inability of a State to extend the operation of its legislation to a territory surrendered by a State to the Commonwealth under s 111 is mentioned below (see para 2 under ‘V TERRITORY LAWS'.)
32 Above n 2.
33 State Authorities (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey and Gaudron JJ) and see also Gleeson CJ in Mobil Oil (2002) 211 CLR 1, 25 [14] who quoted with approval the famous remarks by Dixon J regarding the constitutional existence of the States in Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 82.
34 Sweedman (2006) 226 CLR 362, 429 [123], 432 [131] and generally 428–32 [121]–[131]. For an earlier expression by him of the same kind of limitation on State legislative authority see BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 471 [189], 472 [192] ('Schultz’).
35 (1988) 169 CLR 41 ('Breavington’).
36 Text below (see ‘IX.D THE UNITARY NATIONAL LAW THEORIES’).
37 Re Wakim; Ex parte McNally (1999) 198 CLR 511, 573 [107]–[108] (Gummow and Hayne JJ) ('Wakim’).
38 See, eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (Cth) s 9.
39 Text below (see ‘VIII JURISDICTION OF COURTS'.)
40 Breavington (1988) 169 CLR 41, 123 (Deane J).
41 L Fuller, The Anatomy of the Law (1971) 88. Elsewhere Fuller emphasised the elimination of contradiction in his eight model principles of legality: The Morality of Law (Rev ed, 1969) 39, 65–70. He also quoted at 33 the following remarks of Vaughan CJ in Thomas v Sorrell (1677) 124 ER 1098 who observed: ‘[A] law which a man cannot obey, nor act according to it, is void, and no law; and it is impossible to obey contradictions, or act according to them': 1102.
42 As was recognised for State legislation in Schultz (2004) 221 CLR 400, 458 [142] (Kirby J).
43 Compare Peter, Nygh, ‘Full Faith and Credit: A Constitutional Rule for Conflict Resolution’ (1991) 13 Sydney Law Review 415, 432Google Scholar.
44 The application of our solutions in relation to overlaps involving Territory laws are considered separately and below (see under ‘V TERRITORY LAWS’).
45 So far as it is relevant for present purposes this clause reads:
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.
46 Pfieffer (2000) 203 CLR 503, 535 [67] and see also Schultz (2004) 221 CLR 400, 459 [144] (Kirby J).
47 See, eg, The Al Wahab [1984] AC 50, 71 (Lord Wilberforce); Coast Lines v Hudig & Veder Chartering NV [1972] 2 QB 34, 44 (Lord Denning MR); Atlantic Underwriting Agencies Ltd v Compania di Assicurazione di Milano SpA [1979] 2 Lloyd's Rep 240, 245; Stanley Kerr Holdings Pty Ltd v Gibor Textile Enterprises Ltd [1978] 2 NSWLR 372, 379, 380. The difficulty may be no easier with the similar process involved in applying the same kind of test when a settler has failed to choose a system of law governing a trust: eg, Lindsay v Miller [1949] VLR 13; Perpetual Executors and Trustees Association of Australia v Roberts [1970] VR 732.
48 Pfieffer (2000) 203 CLR 503, 535–8 [72]–[80] and Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491, 508 [36], 516–7 [63]–[66], 520 [75].
49 Jeremy, Kirk, ‘Conflicts and Choice of Law Within the Australian Constitutional Context’ (2003) 31 Federal Law Review 247, 286Google Scholar.
50 Above n 48 and Sweedman (2006) 226 CLR 362, 407 [50]–[51].
51 William, Gummow, ‘Full Faith and Credit in Three Federations’ (1995) 46 South Carolina Law Review 979, 1023Google Scholar.
52 Michael, Detmold, The Australian Commonwealth (1985) 140Google Scholar.
53 Australian Constitutional Commission: Distribution of Powers Advisory Committee Report (1987) 23 n 25 and accompanying text.
54 Victoria v Commonwealth (1937) 58 CLR 618.
55 Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557.
56 Mobil Oil (2002) 211 CLR 1, 26 [16] (Gleeson CJ).
57 See, eg, Lipohar (1999) 200 CLR 485, 498 [18] (Gleeson CJ) (statutory offences); Edward, Sykes and Michael, Pryles, Australian Private International Law (3rd ed, 1991) 35–7Google Scholar, 37–9 (making and breaching contracts), 39–42 (commission of torts).
58 Compare the Canadian developments which depart from having to determine a single situs for a crime mentioned in Lipohar (1999) 200 CLR 485, 498–9 [19] and for tort, Sykes and Pryles, above n 57, 41.
59 We note in passing that our solution has not had to be applied in s 109 cases where the ‘field’ covered by federal legislation is not considered by reference to the geographical operation of that legislation unless the legislative provisions make the geographical operation a relevant factor.
60 (1992) 27 NSWLR 78.
61 P & O Steam Navigation Co v Kingston [1903] AC 471. Laws of this kind were seen as indirect methods of evading the restrictions mentioned in the accompanying text.
62 Stephen, Gageler, ‘Private intra-national law: Choice or conflict, common law or constitution’ (2003) 23 Australian Bar Review 184, 188Google Scholar.
63 See also Kirk, above n 49, 286–7.
64 Graeme, Hill, ‘Resolving a True Conflict between State Laws: A Minimalist Approach’ (2005) 29 Melbourne University Law Review 39Google Scholar, esp at 41–2, 72–85.
65 Sweedman (2006) 226 CLR 362, 406 [48] — a view implicitly rejected by Callinan J in dissent. Its actual application in that case may have not have been essential to the decision since the relevant Victorian and New South Wales provisions did not displace the choice of law rules: 400 [24]. The test referred to in the text accompanying this note is of course directed to the resolution of what we have described as indirect inconsistency.
66 See the cases and other materials cited in Distribution of Powers Report, above n 53, 23 and also Pacific Gas & Electric Co v SERRC Commission, 461 US 190 (1983).
67 For example, Hill, above n 64, 47–9.
68 An example taken from Bradley, Selway, ‘The Australian “Single Law Area“’ (2003) 29 Monash University Law Review 30Google Scholar, 38, 46.
69 (2006) 226 CLR 362.
70 Transport Accident Act 1986 (Vic) s 104(1).
71 Sweedman (2006) 226 CLR 362, 400–2 [25]–[32].
72 Ibid 400 [32] (Gleeson CJ, Gummow, Kirby and Hayne JJ), 429 [123] (Callinan J).
73 (1992) 27 NSWLR 78. Another example consists of the conflicting Western Australian and Tasmanian internet gambling legislation involved in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, 473 [83], 482 [123].
74 Contrast the effect of the hypothetical legislation considered above (see text at paragraph accompanying nn 60–1).
75 (1958) 99 CLR 132.
76 (1992) 177 CLR 248 ('Capital Duplicators’).
77 (1994) 181 CLR 548.
78 See also Brian, R Opeskin, ‘Constitutional Dimensions of Choice of Law in Australia’ (1992) 3 Public Law Review 152Google Scholar, 185.
79 Despite doubts expressed in the past about the constitutional basis for ss 79 and 80 of the Judiciary Act 1903 (Cth), s 79 was supported under s 51(xxxix) of the Constitution: ASIC v Edensor Nominees P/L (2001) 204 CLR 559, 587 [57] (Gleeson CJ, Gaudron and Gummow JJ). We respectfully agree and can see no reason for taking a different view in relation s 80: cf Selway, above n 68, 36–7.
80 (1988) 169 CLR 41, 83.
81 Official Report of the National Australasian Convention Debates (Adelaide, 1897) 1005–6 and Zelman, Cowen, ‘Full Faith and Credit: The Australian Experience’ in R, Else Mitchell (ed), Essays on the Australian Constitution (2nd ed, 1961) 293Google Scholar, 300.
82 Convention Debates above n 81, 1006.
83 Australian Law Reform Commission, Choice of Law, Report No 58 (1992) [3.24]; Gummow, above n 51, 1010–1; Gageler, above n 62, 188; Leeming, above n 27, 119; Nygh, above n 43, 432–4 (but support for the power confined to giving primacy to the law of a State operating within its own territory); Michael Pryles and Peter Hanks, Federal Conflict of Laws (1974) 173–4 and cf Sweedman (2006) 226 CLR 362, 422 [104] (Callinan J) dissenting; Selway, above n 68, 36 (who curiously asserted that to prescribe choice of law rules would not constitute the recognition of the laws chosen under those rules).
84 Lindell, above n 5, 26–7.
85 Below, see text accompanying n 139.
86 See, eg, Butler v Attorney-General (Vic) (1961) 106 CLR 268.
87 (1984) 158 CLR 447.
88 (1999) 200 CLR 485. The question was raised in argument without being decided whether a State could authorise its courts or tribunals to conduct their proceedings outside the territorial limits of that State in Schultz (2004) 221 CLR 400, 427 [29] (Gleeson CJ, McHugh and Heydon JJ), 443 [92]–[94] (Gummow J), 454 [130], 461 [152] (Kirby J), 468–9 [178]–[179] (Hayne J), 471–2 [189], [191]–[192], 474 [202] (Callinan J).
89 This issue is addressed in Kirk, above n 49, 290–4. However this was done on the assumption that such laws are required by the forum to be given an extraterritorial operation by reason of s 118 of the Constitution. Use was made by analogy of the case law dealing with the venue provisions of the Judiciary Act 1903 (Cth) ss 79 and 80.
90 See the remarks in Wakim (1999) 198 CLR 511, 573 [107]–[108] (Gummow and Hayne JJ). When read with the qualification indicated in the text regarding ‘the consent of the other States or Territories’ they do not appear to fall foul of the forceful criticisms directed at them in Dennis, Rose, ‘The Bizarre Destruction of Cross-Vesting’ in Adrienne, Stone and George, Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 186, 189–191Google Scholar.
91 The validity of the present cross-vesting arrangements as between the Supreme Courts of the States and Territories hinges on the soundness of this view.
92 See, eg, in Lorenzo v Carey (1921) 29 CLR 243, 252, 254–5; Booth v Shelmerdine Bros Pty Ltd [1924] VLR 276 and Leslie Zines, Cowen and Zines's Federal Jurisdiction in Australia (3rd ed, 2002), 235–8. But see also below n 94.
93 See Felton v Mulligan (1971) 124 CLR 367.
94 As regards the effect of cov cl 5 in requiring State Courts to give effect to the Constitution and Commonwealth laws applicable to matters competently before them see W, Harrison Moore, The Commonwealth of Australia (2nd ed, 1910) 80–1Google Scholar, 212, 418 and Inglis Clark, Studies in Australian Constitutional Law ((1901) Reprint 1997) 177, who emphasised that the duty operates even in the absence of federal legislation vesting State Courts with the jurisdiction to deal with such matters. We refrain from determining whether the jurisdiction derived from cov cl 5 would supplant that of any cross-vested jurisdiction or whether litigants could elect to invoke either of those jurisdictions as was previously assumed to be the case with the analogous situation dealt with in the cases cited above in n 92.
95 R v B [1972] WAR 129 and the Australian Law Reform Commission, Contempt, Report No 35 (1987) 268–70 [464].
96 Brebner v Bruce (1950) 82 CLR 161.
97 Except as regards Federal and State cooperative schemes, he favoured a court specific presumption in relation to criminal but not civil legislation: Kirk, above n 49, 291–2, 293–4.
98 It may also conflict with the limits Kirk himself acknowledged on the extent to which a State can interfere with the proceedings of courts in other States: above n 49, 290 referring to Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 547 and 574–5; see also Gageler to a similar effect and the possibility of falling foul of s 106, above n 62, 188.
99 This was recognised in Sweedman (2006) 226 CLR 362, 402–3 [33]–[34] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
100 The latter provision only applies if a defendant is served interstate under that Act while proceedings commenced in inferior courts and tribunals can be removed into a Supreme Court to enable them to be transferred under s 5 of the national cross-vesting Acts: see, eg, Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and (Cth) s 8. Professor Lindell has suggested that the power to transfer cases to a more appropriate court applies to courts exercising federal jurisdiction: Geoffrey, Lindell, ‘The Cross-vesting Scheme and Federal Jurisdiction Conferred Upon State Courts by The Judiciary Act 1903 (Cth)’ (1991) 17 Monash University Law Review 64, 76Google Scholar. The High Court is in a special position because it is not covered by the cross-vesting scheme but it does have the power to remit cases to other more appropriate courts by virtue of s 44 of the Judiciary Act 1903 (Cth). He has also argued that the High Court's present attitude to the exercise of that power which was formulated before the introduction of the national cross-vesting scheme should now be reassessed in the light of the introduction of that scheme in order to produce uniform results for all Australian courts: Martin, Davies, Sam, Ricketson and Geoffrey, Lindell, Conflict of Laws: Commentary and Materials (1997) 112Google Scholar [2.3.34] (5).
101 See, eg, Breavington (1988) 169 CLR 41, 123–4 where Deane J referred to the accepted principles in a society governed by the rule of law that an individual should not be exposed to the injustice of being subjected to the requirements of contemporaneously valid but inconsistent laws; and also described the existence of the High Court's appellate jurisdiction under s 73 of the Constitution as having the effect of imposing an ultimate unity upon distinct court systems; and also Selway, above n 68, 39.
102 A view seemingly accepted by Gummow, above n 51, 1005 (eighth comment). Our main solution cannot avoid forum shopping in relation to differences which result from legislation that deals with procedural matters ie, those that govern the way litigation is conducted: Pfieffer (2000) 203 CLR 503, 543-4 [99]-[100]. But it does in relation to differences which result from legislation that is applied in the litigation and deals with substantive matters. The distinction between the two matters referred to here is used in the sense known in conflict of laws.
103 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1900) 961.
104 (1989) 169 CLR 41. As to the first five views see Australian Constitutional Commission, Final Report (1988) vol 2, 705–6 [10.344]. The other was discussed in Sykes and Pryles, above n 57, 331.
105 See, eg, Moore, above n 94, 265–6 who suggested that the rules of private international law may assist in ascertaining the limits of the legislative powers of a State and the unsuccessful attempt made by Griffith CJ and Barton J to use those rules as a means of circumscribing those powers in Delaney v Great Western Milling Co Ltd (1916) 22 CLR 150 discussed in David Kelly, Localising Rules in the Conflict of Laws (1974), 70–2 and Detmold, above n 52, 140–1.
106 (1991) 174 CLR 1, 36–7 (Brennan, Dawson, Toohey and McHugh JJ); cf 45 (Deane J), 54 (Gaudron J). Even before that case a majority of the Court refused to accord a substantive operation to s 118 leaving aside its effect on the inability of States to refuse to recognise the laws of a sister State on the grounds of public policy: Breavington (1988) 169 CLR 41 (Mason CJ, Brennan, Dawson and McHugh JJ); cf Wilson, Gaudron and Deane JJ. See now Pfieffer Pty Ltd (2000) 203 CLR 503 where admittedly the Court left open whether the new choice of law rule it adopted was constitutionally mandated by s 118: at 534 [65] and 535 [70].
107 Sweedman (2006) 226 CLR 362, 407 [49], 433 [134], 440 [157].
108 Pfieffer (2000) 203 CLR 503, 533-4 [64], Sweedman, (2006) 226 CLR 362, 403–4 [35].
109 (1988) 169 CLR 41, 69 (Mason CJ).
110 Kirk, above n 49, 248.
111 Ibid 262.
112 See above, text at paragraph accompanying n 102.
113 James v The Commonwealth (1936) 55 CLR 1, 59–60.
114 (1988) 169 CLR 41, eg, at 129, 135, 137, 138–9. See also before that case was decided as regards the territorial confinement of State laws: Detmold, above n 52, 136–141, 144–5, 154–5, 157.
115 Ibid 137–8.
116 Ibid 98.
117 For example, Gummow, above n 51, 1006–12 although not necessarily implying their acceptance.
118 Kirk, above n 49, 248, 265, 268, 282–3.
119 Apart from Kirk, Nygh, above n 43, 422–25, 428–32; James, Stellios, ‘Choice of Law and the Australian Constitution: Locating the Debate’ (2005) 33 Federal Law Review 7Google Scholar, 28–32.
120 Stellios, above n 119, 23, 27. It was, amongst other things, seen as inconsistent with Leeth v The Commonwealth (1992) 174 CLR 455 and Putland v The Queen (2004) 218 CLR 174 and Kirby J is said to have rejected the argument as well in Pfieffer (2000) 203 CLR 503, 546 [108] n 212: Stellios, above n 119, 25.
121 Gageler, above n 62 and Kirk, above n 49.
122 Although the recognition of Territory laws comes about independently of s 118 — an issue not pursued here.
123 Kirk, above n 49, 283–4.
124 Gageler, above n 62, 187–8 and Kirk, above n 49, 285.
125 Kirk adopts the closer connection test and Gageler adopts the principles of implied repeal and the relationship between general and special statutory provisions. The reasons for rejecting them as the main solution to inconsistency have already been explained: see above, text at paragraphs containing nn 47–51 and 62–3, respectively.
126 See Re Stubberfield's Application (1996) 70 ALJR 646.
127 This recalls the difficulty ascribed to the US full faith and credit clause under which it is asserted that ‘to require each State to apply the law of the other is absurd': Laycock, above n 23, 297 cited with approval in State Authorities (1996) 189 CLR 253, 286 n 131 (McHugh and Gummow JJ) and Sweedman (2006) 226 CLR 362, 433 [134] (Callinan J).
128 Notwithstanding the possible contrary assumption in Kirk, above n 49, 279–80 and see also Gageler, above n 62, 188.
129 See, eg, Cowen above n 81, 295–6, 298–30; Pryles and Hanks, above n 83, 66.
130 Johnny H Killian, George A Costello, Kenneth R Thomas (eds), The Constitution of the United States of America Analysis and Interpretation (2002) 908 <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_documents&docid=f:sd017.pdf> at 30 September 2010. As updated by Kenneth R Thomas (ed), The Constitution of the United States of America Analysis and Interpretation (2008 Supplement) 45–46 <http://gpoaccess.gov/constitution/pdf2002/2008supplement.pdf> at 30 September 2010.
131 See, eg, Breavington (1988) 169 CLR 41, 81–2 (Mason CJ); Gummow, above n 51, 1014–23; Opeskin, above n 78, 173–7; and Davies, Ricketson and Lindell, above n 100, 48–53 [2.2.20]–[2.2.26].
132 538 US 488 (2003) ('Franchise Tax Board Case’).
133 486 US 717 (1988).
134 449 US 302 (1981).
135 The same understanding was expressed in the 2008 Supplement to the Annotated Constitution cited above n 130, 45–6; cf the reference to the older cases which supported a weighing of conflicting governmental interests which however no longer seem to be in vogue as having been overtaken by more modern cases such as the Franchise Tax Board Case and Baker v General Motors, 522 US 222 (1998).
136 This assessment appears to accord with that made by Gummow, above n 51, 1022–3 and see also Opeskin, above n 78, 176.
137 A possibility recognised by Fullagar J despite his reliance on federal legislation rather than s 118 in Harris v Harris [1947] VLR 44, 56, 59.
138 Lipohar (1999) 200 CLR 485, 534 [120] (Gaudron, Gummow and Hayne JJ) as regards double jeopardy.
139 Hill, above n 64, 93 and Stellios, above n 119, 40–3 who also calls in aid s 117 which prohibits discrimination against residents of other States.
140 With the exception of State legislation operating in a Territory surrendered under Australian Constitution s 111.