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The Tests for Inconsistency under Section 109 of the Constitution

Published online by Cambridge University Press:  24 January 2025

Allan Murray-Jones
Allan Murray-Jones*
Affiliation:
Supreme Court of the Australian Capital Territory
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Abstract

Mr Murray-Jones is concerned to re-examin,e the rules which have developed with respect to the interpretation of s. 109 of the Constitution. He looks first at the “cover-the-field” test enunciated by Isaacs J. and its subsequent application by the High Court. He moves on to discuss a second test propounded by Dixon J. which would strike down State laws which altered, detracted or impaired the operation of a Commonwealth law. These tests are, of themselves, insufficient to meet the difficulties and a number of subsidiary tests for direct inconsistency, some of doubtful validity, are critically scrutinized. The position seems clear when the conclusion can be reached that the Commonwealth intended to provide a single, nation-wide code to regulate a particular area. When criminal proceedings for an offence which contravenes both State and Commonwealth law are considered, complications with respect to differing offences and penalties can frequently arise and the author concludes that the difficulties still require satisfactory resolution. One suggestion is that the CourtS' should more clearly articulate the various factors }vhich they take into account when reaching th,eir decisions.

Type
Research Article
Information
Federal Law Review , Volume 10 , Issue 1 , March 1979 , pp. 25 - 52
Copyright
Copyright © 1979 The Australian National University

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References

1 S. 109 provides as follows: “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.” The basic approach to it is that set out by Dixon J. in Ex parte McLean (1930) 43 C.L.R. 472, discussed infra p. 32.

2 Howard, Australian Federal Constitutional Law (2nd ed. 1972). Lane, The Australian Federal System with United States Analogues (1972). Sawer, Australian Federalism in the Courts (1976).

3 a (1926) 38 C.L.R. 441.

4 See infra p. 30.

5 It is interesting to note that the United States Supreme Court has taken a similar approach in dealing with the equivalent doctrine of law in that country. This is based on Article VI, Section 2 of the U.S. Constitution which provides that Federal law shall be the “supreme law of the land”. The Court makes a distinction between invalidity of State law caused by the physical impossibility of complying with both laws (Florida Lime & Avocado Growers, Inc. v. Paul (1963) 373 U.S. 132, 142) and the invalidity that occurs when Congress explicitly or implicitly prohibits State legislation in the relevant area (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230). A third situation that will lead to the invalidity of the State law is that which occurs when the State law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Hines v. Davidowitz (1941) 312 U.S. 52, 67). The first of these categories is similar to the concept of direct inconsistency in the Australian doctrine, the second and third together would represent the cover the field approach (the third being taken in by saying that the legislative intention was comprehensive and effective to avoid situations in which a State law could stand as an obstacle to it).

6 Australian Boot Trade Employees Federation v. Whybrow & Co. (1910) 10 C.L.R. 266.

7 (1926) 37 C.L.R. 466.

8 Id. 489. His Honour said that he and Griffiths C.J. had taken this view in Whybrow's case (n. 6). His own judgment in that case might be interpreted in this way (330), as may that of Barton J. (299). It is, however, a bit strained to regard the judgment of Griffiths C.J. in this light. Certainly, the phrase “cover the field” had been used in Australia by the time Whybrow was decided. In The Constitution of the Commonwealth of Australia, 2nd edition (1909) Sir W. Harrison Moore noted that a Commonwealth law “may well be intended … [to] … be exhaustive of regulation on that subject. In such a case, the whole field of legislation is covered” (409). The term was probably derived from United States law. It was certainly known there: Hines v. Davidowitz (1941) 331 U.S. 52, 67. See also the reference to a law which “covers the whole subject matter” in Norris v. Crocker (1851) 13 Howard 429, 438 which is found at 54 U.S. 429, 438. In Federated Sawmill Employees of Australia v. James Moore & Son Pty Ltd (1909) 8 C.L.R. 465, 535, 536, Isaacs J. referred to the “field” in which laws met.

9 Id. 490.

10 Or at least not without so straining the words of that concept as to make it meaningless. In theory, the tribunal sentencing a person guilty of the offence could only obey one law.

11 (1926) 37 C.L.R. 466, 478.

12 Ibid.

13 (1926) 38 C.L.R. 441.

14 See infra pp. 47-51.

15 (1926) 38 C.L.R. 441, 462.

16 Id. 457-460. In effect, his Honour was only prepared to accept the Whybrow test. He pursued that view in a number of cases. See Howard op. cit. 34, n. 61.

17 Id. 450-451.

18 Howard op. cit. 36.

19 Lane op. cit. 709. Professor Lane, possibly recognising this problem with his view, says that there was a “patent inconsistency” of law and accuses the judges who rely on the cover the field ground with “subtilizing” or being guity of “mere display”.

20 Howard op. cit. 39-41. Howard's view is examined in more detail infra pp. 37-38.

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

22 Id. 479.

23 Id. 483. The first sentence of this passage may suggest that to preserve a State law it is necessary to positively show that the Federal law exhibited the given intention. Of course, the burden is on those attempting to show that the State law is invalid: Tasmanian Steamers Pty Ltd v. Lang (1938) 60 C.L.R. 111, 128.

24 Id. 485.

25 Ibid. 481-485.

26 Victoria v. The Commonwealth (1937) 58 C.L.R. 618, 630 and Stock Motor Ploughs Ltd v. Forsyth (1932) 48 C.L.R. 128, 136.

27 Lane op. cit. 714 regards it as a different test.

28 Howard op. cit. 39.

29 See Infra pp. 39-40.

30 Robinson v. Western Australian Museum (1977) 16 A.LR. 623, 648-649 per Gibbs J., Swift Australian Co. Pty Ltd v. Boyd Parkinson (1962) 108 C.L.R. 189, 207 per Kitto J.But see A. Raptis & Son v. State of South Australia (1977) 15 A.L.R. 223, 232.

31 Attorney-General for Queensland v. Attorney-General for the Commonwealth (1915) 20 C.L.R. 148, 168. It is interesting to note that Isaacs J. used the cover the field test in a case dealing with this statute before the decision in Clyde Engineering v. Cowburn. See Union Steamship Co. of N.Z. Ltd v. The Commonwealth (1925) 36 C.L.R. 130, 149. Also see Zelling, “Inconsistency between Commonwealth and State Law” (1948) 22 A.L.J. 45.

32 Ffrost v. Stevenson (1937) 58 C.L.R. 528, 572 per Dixon J.

33 (1920) 28 C.L.R. 23. Reference could also be made to the second test set out by Isaacs J. in Clyde Engineering v. Cowburn, supra p. 27.

34 Howard op. cit. 35.

35 Lane op. cit. 709.

36 Sawer op. cit. 139.

37 (1943) 68 C.L.R. 151.

38 Id. 160.

39 Id. 163.

40 Id. 160-161.

41 Id. 164.

42 Rich and McTiernan JJ.

43 (1955) 92 C.L.R. 565.

44 Id. 592

45 Ibid.

46 (1956) 95 C.L.R. 177. Their Lordships agreed with the judgment of Fullagar J. in general terms, at 185. However, at 182 they quote the test propounded by Dixon J. in Ex parte McLean as the test of inconsistency.

47 (1962) 108 C.L.R. 189.

48 (1977) 15 A.L.R. 223.

49 (1959) 103 C.L.R. 30.

50 Id. 68. Professor Lane regards this as “one of our extraordinary High Court decisions” and criticises it because he says the “permission” of the Commonwealth would have been “contentless” without the analysis of social history conducted by the Court, and because the Commonwealth Parliament itself would have no power to impose political levies on unions. The first of these criticisms ignores the cover the field ground for decision. It is possible to confer power on a union to do things notwithstanding State law to the contrary, and the analogy drawn by Fullagar J. between this law and those creating the Commonwealth Bank and the Australian Broadcasting Commission is valuable. The second criticism appears to be a reference to some form of crude characterisation. It is fairly clear that a provision in a law that is a law with respect to a subject matter with respect to which the Commonwealth does have power to legislate will not be invalid simply because it seeks to achieve a policy that the Commonwealth could not legislate directly for. For example, the Commonwealth can, pursuant to its power to legislate for matters with respect to overseas trade, require that environmental matters be taken into account in deciding whether to grant an export permit, although there would be no power to legislate to directly regulate the environment: Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 C.L.R. 1. The same approach can be taken to the decision in Hursey v. Williams.

51 (1963) 113 C.L.R. 54.

52 1d. 147 (per Menzies J.), 156 (per Windeyer J.), 130 (per Taylor J.), 120-122 (per Kitto J.), 109 (per McTiernan J.), 99-100 (per Barwick C.J. dissenting). Lane, op. cit. 712, says that there was no inconsistency because the permission and the prohibition operated on different grounds (the one because of safety, the other because of public need).But how does the motive of the N.S.W. government affect the matter if there was a Commonwealth permission and a State prohibition of the same activity, and permission/prohibition is a distinct ground for inconsistency? The essential point is usually the intention of the paramount legislature. In this case the matter turned on the lack of power of that legislature.

53 (1977) 17 A.L.R. 1.

54 Id. 7.

55 Lane op. cit. 714.

56 Ibid.

57 (1937) 58 C.L.R. 618, 630.

58 This shows through very clearly in the judgment of Bray C.J. in the case of The Queen v. Industrial Court of South Australia; Ex parte the Australian Broadcasting Commission (1976) 13 S.A.S.R. 460, 466 ff.

59 Howard op. cit. 39-44.

60 Id. 39-40.

61 Stock Motor Ploughs Ltd v. Forsyth (1932) 48 C.L.R. 128.

62 In fact, the case was dealt with as one of possible cover the field inconsistency and it was held by Gavan Duffy C.J. and Starke, Evatt and McTiernan JJ. (Dixon J. dissenting) that the Commonwealth law did not cover the field.

63 See supra p. 30.

64 (1930) 43 C.L.R. 472, 483.

65 Recent examples include Re Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 14 A.LR. 257, 271 per Mason J.; Australian Broadcasting Commission v. Industrial Court of South Australia (1977) 15 A.L.R. 609, 617 per Stephen J.; Palmdale-AGCI Ltd v. Workers' Compensation Commission of N.S.W. (1977) 17 A.LR. 1, 7 per Mason J.; and Miller v. Miller (1978) 22 A.LR. 119, 127 per Jacobs J. In the last named case Barwick C.J. refers to “textual collision” which is apparently the same thing as direct inconsistency (p. 123).

66 (1967) 117 C.L.R. 253.

67 Id. 258.

68 See, e.g. the judgment of Kitto J., id. 262-263.

69 (1974) 4 A.L.R. 293.

70 At p. 49 infra.

71 (1974) 4 A.L.R. 293, 300.

72 (1977) 14 A.L.R. 257.

73 Id. 270.

74 Id. 271.

75 Cf. Barwick C.J. in Miller v. Miller [1978] 22 A.L.R. 119, 123 who says that there are two bases of inconsistency: cover the field and “textual collision”.

76 (1930) 43 C.L.R. 472, 483. Supra p. 31.

77 Stock Motor Ploughs Ltd v. Forsyth (1932) 48 C.L.R. 128, 147.

78 (1937) 58 C.L.R. 618, 634.

79 This is pointed out by Tammelo, “The Tests of Inconsistency Between Commonwealth and State Laws” (1957) 30 A.LI. 496, 501.

80 In the discussion of the “criminal cases”, infra pp. 47-52.

81 Tammelo op. cit. 501, says that the “crucial norms” of this test “are not of a nature to render the matters tested by them immediately self evident”. Lane makes a similar criticism (Lane op. cit. 715).

82 Pp. 47-52, discussing criminal cases.

83 (1948) 77 C.LR. 84.

84 Id. 109 (per Latham C.J.), 119 (per Dixon J.). For a more recent example see Australian-International Insurance Ltd v. Workers' Compensation Commission of N.S.W. (1971) 125 C.LR. 470.

85 West v. Commissioner of Taxation (N.S.W.) (1936) 56 C.L.R. 657, 684 per Evatt J. (who was very critical of what he called “manufactured inconsistency”); Insurance Commission v. Associated Dominions Assurance Society Pty Ltd (1953) 89 C.LR. 78, 85 per Fullagar J.; Wenn v. Attorney-General (Vic.) (1948) 77 C.LR. 84, 120 per Dixon J.; and the cases collected by Mason J. in the G.M.A.C. case, (1977) 14 A.LR. 257, 269. See also Australian Coastal Shipping Commission v. O'Reilly (1962) 107 C.LR. 46.

86 (1977) 14 A.LR. 257.

87 Id. 270.

88 (1977) 17 A.L.R. 1.

89 (1977) 14 A.LR. 257, 270.

90 (1937) 58 C.L.R. 618, 638.

91 Id. 628. But this example is not as obvious as those given by Evatt J.

92 Obvious examples of this are Clyde Engineering Co. Ltd v. Cowburn (1926) 37 C.L.R. 466 and Blackley v. Devondale Cream (Vic.) Pty Ltd (1967) 117 C.L.R. 253.

93 Lane op. cit. 718. The lack of usefulness of this example flows from the fact that trading activities attract a great deal of regulation by State Governments. Commonwealth laws relating to interstate and overseas trade are perforce made in the context of these laws. State laws that operated on interstate and overseas trade because of its overseas or interstate character are more likely to be invalid where there is a relevant Commonwealth law. In the latter case (regulation because of the interstate nature of the trade) the laws may well infringe section 92 of the Constitution.

It is interesting to note that the United States Supreme Court recognises a similar factor in considering whether a Federal law supersedes a State one. In Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 the Court said that an “Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws of the same subject.” The case there quoted (Hines v. Davidowitz (1941) 312 U.S. 52) dealt with a federal law said to touch upon international relations, which was held to be an area that attracted this doctrine.

94 In R. v. Loewenthal; Ex parte Blacklock (1974) 4 A.L.R. 293, Menzies J. (who referred to a “common rule” at 296) appears to have used it in the latter sense.

95 Supra p. 37, where the “Commonwealth confers” technique was discussed.

96 (1976) 15 A.L.R. 223.

97 (1978) 16 A.L.R. 623, 672.

98 Id. 649 (per Gibbs J.) and 668-669 (per Mason J.).

99 (1977) 15 A.LR. 609.

1 Again, there is a similarity here with United States law. “The object sought to be obtained by the federal law and the character of the obligations imposed by it may reveal” a federal purpose to exclude State law: Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230.

2 (1954) 92 C.L.R. 565.

3 Palmdale-AGCJ Ltd v. Workers' Compensation Commission of N.S.W. (1977) 17 A.L.R. 1.

4 Yet again there is a parallel in United States law. In Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, the Supreme Court said that the “scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it”.

5 Cf. Palmdale-AGCJ Ltd v. Workers' Compensation Commission of N.S.W. (1977) 17 A.L.R. 1, 7.

6 (1943) 68 C.L.R. 151, 159. In Palmdale-AGCJ (1977) 17 A.L.R. 1, 7 Mason J. said, “even apart from the operation which s. l00(b) attributes to Part III ... the State law … stands outside the scope of … the Commonwealth statute because it does not attempt to deal with obligations of that kind or occupy the relevant field.”

7 Ibid.

8 (1954) 92 C.L.R. 565, 593.

9 Howard op. cit. 44.

9a In the second Noarlunga Case (O'Sullivan v. Noarlunga Meat Ltd (1955-1956) 94 C.L.R. 367), the following passage in thejoint judgment of Dixon C.J. and Williams, Webb and Fullagar JJ., at 373-374 clarifies the use of the word “characterization”:

The difference of opinion among the judges [in the first Noarlunga Case] was probably traceable rather to the necessity of what may be calle “characterizing” the regulations than to any want of unanimity as to the scope and operation of the principle, or rule. But of course, when minds experience a difficulty in agreeing about subsuming an objective thing under a category, it is never certain how far the difficulty is occasioned by varying appreciations of the category and how far by varying apprehensions of the characteristics possessed by the thing.

10 The example he gave could support the view that he was only referring to classification of State laws, as the one State law could be inconsistent with two separate Commonwealth ones which could not be regarded as having the same character. Sawer, op. cit. 140 says that “inconsistency can exist irrespective of thecategories to which legislation may belong from the point of view of the power distribution of the Commonwealth and the States”.

11 Including s. 11 of the Crimes Act 1914 (Cth) and s. 30(2) of the Acts Interpretation Act 1901 (Cth).

12 (1937) 58 C.L.R. 618.

13 (1926) 38 C.L.R. 441.

13a Cf. R. v. McDonald (1906) 8 W.A.L.R. 149.

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

15 Id. 486. In fact he was prepared to assume that in such a case there was no inconsistency.

16 (1974) 4 A.L.R. 293.

17 With Jacobs J. dissenting.

18 (1974) 4 A.L.R. 293, 296.

19 Id. 300.

20 [1975] Qd.R. 215.

21 Id. 218.

22 Id. 222-223.

23 ld. 233.

24 In certain circumstances this may, as a matter of fact, be a correct assumption. However, to establish that the Court would have to have regard to things like Parliamentary debates.

25 [1976] Qd.R. 153.

26 Id. 156.

27 (1976) 9 A.LR. 65 (High Court), [1975] Qd.R. 388 (Queensland Supreme Court).

28 [1975] Qd.R. 388, 392.

29 (1976) 9 A.L.R. 65, 69 per Jacobs J.