LAWS1116 Constitutional Law

Resolving Conflicts of LawsAssoc. Prof. Jonathan CroweRoom W232A, Forgan SmithTel: (07) 3365 7180Email: j.crowe@law.uq.edu.au

Forms of potential conflictConflicts between Commonwealth and State governments arise in three main ways.Inconsistencies between Commonwealth and State legislation in respect of the concurrent powers listed in s 51. Under s 109, the Commonwealth law prevails to the extent of the inconsistency. However, identifying inconsistencies is not always straightforward. Commonwealth legislation that affects the executive government of the States. State legislation that affects the executive government of the Commonwealth.

Conflicts of lawsA Commonwealth law must be within power in order to be valid.State laws will not be valid if they concern an exclusive Commonwealth power. This still leaves significant potential for valid Commonwealth and state laws to address the same subject matter.What happens if there is a valid Commonwealth law that appears to conflict with a valid state law on the same topic?

Section 109The basic position on conflicts of laws is yielded by s 109: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.However, s 109 only applies in cases of inconsistency. How do we decide if two laws are inconsistent?This can be a complicated question. Various forms of inconsistency have been recognised in the High Courts jurisprudence.

Conflicts of dutiesA Commonwealth law and a state law will clearly be inconsistent if one of them requires an act and the other prohibits it.See R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 33. The Liquor Act 1912 (Qld) required a referendum on trading hours to be held along with the Senate elections.However, the Commonwealth Electoral Act forbade this. The Commonwealth law was held to prevail under s 109.

Conflicts of rightsSuppose one law authorises an act and another law prohibits it. A person could technically obey both laws by not performing the act. However, there is clearly a tension between them.The High Court has recognised inconsistency between laws where one law permits an act that the other prohibits.However, care must be taken in asking whether the act is really authorised by the first law or merely not ruled out.

Conflicts of rightsColvin v Bradley Brothers (1943) 68 CLR 151 concerned a state law prohibiting women workers on milling machines. A Commonwealth industrial award permitted the same type of work. Section 109 was applied to override the state law.Multiple cases have held that a Commonwealth law granting a licence to operate a business overrides a state law requiring the grant of a separate state licence.See, for example, OSullivan v Noarlunga Meat (No 1) (1954) 92 CLR 565.

Conflicts of rightsSometimes, however, a person will have to fulfil two sets of requirements in relation to the same course of action.Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 involved a Commonwealth licence to establish a radio station that required the erection of antennae of a certain height.The radio station sought to avoid state planning processes in relation to the antennae. The High Court ruled that both laws apply.

Conflicts of rightsA similar result can be seen in Ansett v Wardley (1980) 142 CLR 237.Ansett employees were governed by a Commonwealth award for airline pilots. Ansett sought to rely on a clause under the award to avoid hiring its first female trainee pilot.The High Court held that the award did not exempt Ansett from complying with the Equal Opportunity Act 1977 (Vic).

Overlapping requirementsSuppose one law imposes certain requirements while another law imposes more onerous requirements. A person could obey both laws by meeting the more onerous requirements.In general, this type of case will depend on the interpretation of the less onerous law. Is it just designed to set a minimum standard or is it meant to exhaust the requirements?

Overlapping requirementsAn early case on point was Australian Boot Trade Employees Federation v Whybrow & Co (1910) 10 CLR 266.Commonwealth and state legislation endorsed different minimum wages for apprentice and journeyman boot makers.The federal minimum award rate was slightly higher. However, the laws were held not to be inconsistent, as employers could obey both by paying the higher wage.

Overlapping requirementsClyde Engineering v Cowburn (1926) 37 CLR 466 likewise involved a clash of Commonwealth and state industrial awards.The Commonwealth award set a regular working week of 48 hours. The New South Wales award set a working week of 44 hours. Overtime was payable after that point.It would have been possible for the employer to comply with both standards by paying overtime after 44 hours. However, the High Court held the state award was superseded.The Commonwealth award was not intended as a minimum. Rather, it was meant to standardise employment arrangements on a national basis.

Overlapping requirementsBlackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 reflects the post-Engineers approach taken in Clyde Engineering. Blackley concerned a similar fact scenario to Whybrow. The case concerned a state law setting a minimum wage in the frozen goods industry and a federal law setting a lower wage. The opposite result was reached to that in Whybrow. The state legislation imposed a right to higher wages which was overridden under the Commonwealth law.

Different penaltiesTwo laws may impose the same restriction but apply different processes or penalties.The High Court has generally found an inconsistency in such cases. The Commonwealth approach will prevail.See Hume v Palmer (1926) 38 CLR 441, where federal and state law applied the same rule to steamship navigation (ships must pass each other on the starboard side), but provided for different procedures and penalties.

Operational inconsistencySometimes laws will grant powers to different entities in terms that are not in conflict, but the exercise of the powers may clash.The Kakariki Case (1938) 58 CLR 618 involved competing state and federal laws providing for the salvage of shipwrecks. The laws were generally intended to be complementary. The Commonwealth intended the state law to continue. However, if the Commonwealth decides to remove a particular wreck, it creates an inconsistency and its jurisdiction prevails.

Operational inconsistencyWestern Australia v Commonwealth (Mining Act Case) (1999) 196 CLR 392 provides another good example. The Mining Act 1978 (WA) authorised mining activities. The Defence Act 1903 (Cth) excluded people from defence practice areas. There is no direct conflict between the laws, but when a defence practice is declared in a mining area an operational conflict will arise. The federal law will prevail in such cases.

Operational inconsistencyThe recent case of Momcilovic v The Queen (2011) 245 CLR 1 discussed different maximum penalties for drug trafficking under state and federal law.The majority treated this as a clash of powers. There will be no conflict if the state courts exercise their powers in a way consistent with Commonwealth law.However, if state courts were to impose penalties in excess of the federal maximum, a conflict would then arise.

Covering the fieldIf a Commonwealth law shows an intention to cover the field that is, to comprehensively regulate a particular topic then any state laws on that topic are overridden.Sometimes, the federal law may explicitly state the intention to override state laws.In other cases, the scope of the law will provide evidence of the intention.Clyde Engineering, Blackley and Hume can be regarded as examples.

Covering the fieldThe covering the field test is arguably the most important overarching theme in the High Courts cases on inconsistency.The test is often traced back to Dixon Js judgment in Ex parte McLean (1930) 43 CLR 472.Federal and state laws imposed different penalties on a shearer for not turning up to work. The shearer successfully challenged the state law.[T]he reason is that the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to State law, then no inconsistency would be exhibited. (1930) 43 CLR 472, 483 (Dixon J)

Covering the fieldViskauskas v Niland (1983) 153 CLR 280 concerned the interaction between federal and state racial discrimination statutes.The laws were similar in their requirements, but imposed different processes. The High Court ruled that the state law was excluded.The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive.Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ at 292

Covering the fieldThe High Court ruling in Viskauskas took the Commonwealth by surprise. An amendment was therefore passed to the Racial Discrimination Act 1975 (Cth) declaring retrospectively that it was not intended to cover the field. The High Court ruled in University of Wollongong v Metwally (1984) 158 CLR 447 that this made no difference to the outcome.It is the substance of the law that matters, not the form or the declared intentions of the legislature. The Commonwealth cannot circumvent s 109 by declaring that it is not covering the field.However, a prospective declaration of intent may sometimes have relevance in interpreting the legislation: R v Credit Tribunal (1977) 137 CLR 545.

Covering the fieldA recent example of the covering the field test occurred in Commonwealth v Australian Capital Territory [2013] HCA 55.The Marriage Equality (Same Sex) Act 2013 (ACT) purported to allow same sex couples to get married under territory law.The High Court ruled in an unanimous joint judgment that the Marriage Act 1961 (Cth) was intended to cover the field of marriage.The concept of marriage in s 51(xxi) extends to same sex marriages. The existence of a Commonwealth law covering the field of marriage therefore overrides any state or territory legislation on same sex marriage.

Consequences of conflictThe High Court has held that where a state law is affected by s 109, it is not invalid, but is merely rendered inoperative.This means that the state law will recommence if the inconsistency is removed. This might happen if the federal law is repealed.The state law is rendered inoperative and ineffective from the moment the inconsistency arises. This cannot be retrospectively remedied.The High Court is likely to sever the inoperative provisions where possible. However, this depends on how integral the provisions are to the statute. If the provisions cannot be severed, the whole statute will be inoperative.

Further readingThis weeks topic is covered in Ratnapala and Crowe, ch 11 (especially 263-73).Next week we will have a guest lecture by Peta Stephenson on executive power.See Ratnapala and Crowe, ch 3 and 13.

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