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. (Cth law trumps State law)
How to determine if two laws are inconsistent?
Conflict of Duties– A Cth law and a State law will be inconsistent if one law requires an act and the other law prohibits it
R v Brisbane Licensing Court; Ex parte Daniell (1920) – 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 Cth law prevailed under s.109.
Conflict of Rights – A Cth law and a State law will be inconsistent if one law authorises an act an another law prohibits it
Tension between the laws – even though you can obey both laws by not doing the act
Colvin v Bradley Brothers (1943) – a State law prohibited women from working on milling machines. A Cth industrial award permitted it. The Cth law prevailed as it intended for women to do that type of law
O’Sullivan v Noarlunga Meat (No 1) (1954) – if a person is required to get both a Cth grant and a State grant under two different laws; getting only the Cth grant will suffice
Exceptions –Commercial Radio Coffs Harbour v Fuller (1986) – Cth law required the erection of an antennae to establish a radio station and State law required the plaintiff to get approval. Plaintiff tried to argue they only had to follow Cth law (in order to avoid planning process). HC held that both laws applied
Overlapping Requirements – one law imposes certain requirements while another law imposes more onerous requirements
No clear conflict – can obey both laws by meeting the more onerous requirements
Depends on how you interpret the less onerous requirements – as a minimum standard that another law can build on or designed to exhaust the requirements
Clyde Engineering v Cowburn (1910) – Cth award set a working week of 48 hours while NSW set a 44 hour week. After this, overtime was payable. NSW award was more onerous on employees. HC held that the Cth law prevailed as it was not intended to be a minimum standard; rather, to standardise employment arrangements on a national basis.
Different Penalties– a Cth and State law may impose the same restriction but different penalties or procedures
Hume v Palmer (1926) – Cth and State law applied the same rules to steamship navigation but provided for different penalties. The Cth law prevailed.
Operational Inconsistency – two different laws are not directly in conflict, but when these laws are exercised/in operation, there is conflict
Cth v WA (Mining Act Case) (1999) – the Mining Act 1978 (WA) authorised mining activities. The Defence Act 1903 (Cth) excluded people from defence practice areas. No direct conflict between the laws but when a defence practice area is declared in a mining area, operational conflict will arise.
Suggestions of ‘operational conflict’ are usually rejected
Covering the Field – If a Cth law shows an intention to cover the field (completely regulate a particular topic), then any State laws on that topic are invalid
These two laws may even require the same conduct or pursue the same purpose
Two questions: (conflict if both questions are answered yes)
Is the Cth law intended to be exclusive? (the only law on the topic)
Does the State law operate in the same field as the Cth law?
Sometimes this intention is explicitly stated in the law; other times the scope of the law will provide evidence (e.g. Clyde Engineering v Cowburn – the Cth intended to nationalise working conditions)
Test: ‘Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first?’(per Isaacs J, p.489)
Applied in Ex parte McLean (1930) by Dixon J
The Cth can do the opposite and make an express provision of ‘clearing the field’ – indicating that the Act is to operate concurrently with State laws (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (GMAC Case) (1977)) – no inconsistency between Cth and State law as the Act was not intended to be exhaustive – such a provision is effective
A Cth law can’t declare that there is no inconsistency but in times of doubt surrounding whether a Cth law intends to ‘cover the field’, such a provision is helpful
Viskauskas v Niland (1983) - different processes in federal and state racial discrimination statutes. HC ruled that the Cth law was intended to be exhaustive (this outcome surprised the Cth who passed an amendment that the Act stating it was not intended to cover the field)
Wollongong v Metwally (1984) – the Court held that the retrospective declaration of intent cannot eliminate the inconsistency that was declared
What are the consequences of conflict?
If a State law us affected by s.109, it is rendered inoperative (not invalid as the Constitution suggests) – the State law will immediately come back into effect if the inconsistence is removed (e.g. the federal law is repealed)
Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) – the word ‘invalid’ in the Constitution should be interpreted as meaning ‘inoperative’ (per Latham CJ, p.573)
If the inconsistent provisions can be severed from the rest of the Act, they will be – if the inconsistent provisions are essential to the Act, the whole Act will be inoperative.
External Affairs Power
External Affairs power – s.51(xxix) – concurrent power shared by the Cth and States
The power is vague (only says ‘external affairs’) – the High Court has interpreted the power to have thee sub-powers:
The Geographical Power
Literal – this power applies to laws concerning things, people and events outside of Australia; applied broadly
Australia’s Territorial Sea: NSW v Cth (Seas and Submerged Lands Case (1975) – territorial sea has been defined by international law as extending from the low water mark to 12 nautical miles (approx. 22km) offshore. The Ct passed a law that operated in this area. NSW challenged it. The HC upheld this legislation by saying it fell within the treaty power and within the geographical power (the sea is physically external to Australia)
The external affairs power covers ‘any affair which in its nature is external to the continent of Australia’. – per Barwick CJ
War Crimes: Polyukhovic v Cth (1991) – concerned a Cth law that retrospectively criminalised war crimes during WWII. The HC upheld the legislation under the geographical power.
Raised a debate regarding whether the thing legislated on must have some connection to Australia – majority held that there did not need to be a connection. Brennan J argued this – there needs to be some Australian connection
The Treaty Power
The power of the Cth to pass legislation implementing international treaties that Australia has signed (legislation must be passed for the treaty to be binding in Australia)
First use of the power in Roche v Kronheimer (1921) – Higgins J used to the external affair power to uphold the Treaty of Peace Act 1919 (Cth) which implemented the Treaty of Peace signed at Versailles after WWI (other judges used defence power)
R v Burgess; Ex parte Henry (1936) – an unlicensed aviator who performed stunts near the Sydney Harbour Bridge was charged under the Air Navigation Act 1920 (Cth) which said it is an offence to fly in Australian airspace without a licence. The aviator challenged the law. HC stated that the law fell within the treaty power (implemented the ‘International Convention for the Regulation of Aerial Navigation’)
It is clear ‘that the legislative power of the Cth over “external affairs” certainly includes the power to execute within the Cth treaties and conventions entered into with foreign powers.’ – per Evatt and McTiernan JJ, p.687
RULE: the treaty power extends to all bona fide treaties
Note: the law was held invalid as it did not resemble the Convention enough
Starke and Dixon JJ proposed limitations to the treaty power
Starke J: the laws will only be valid if the ‘matter is “of sufficient international significance’ – p.658
Dixon J: the treaty must be of ‘some matter indisputably international in character’ to be implemented in Australia – p.669
Koowarta v Bjelke-Petersen (1982) – the RDA threatened to invalidate a QLD statute prohibiting Indigenous people from owning large parcels of land. The HC held that the RDA was supported by the treaty power (implementing the 1966 International Convention on the Elimination of All Forms of Racial Discrimination)
Debate about whether the treaty must have an international element and not be purely domestic in application. If not, this could allow the Cth to have a huge amount of power
RULE: expansive view – any law implementing a treaty may be within federal power (could possible be interpreted as needing ‘international concern’)
Gibbs CJ, Aickin and Wilson JJ adopted the limitations of Dixon J in R v Burgess
KEY CASE: Cth v TAS (Tasmanian Dam Case) (1983) - Tasmanian government proposed to build a dam that would flood the Franklin River. Plan opposed by conservationists and the Cth. UNESCO declared the Franklin River a World Heritage Site in 1982. Cth passed legislation to protect the site and prohibit the construction of the dam. HC upheld the legislation – within the external affairs treaty power.
RULE: the treaty power is not limited by content – only requirement is that Australia has signed an international treaty in good faith about the topic that has been legislated on (even if the topic is traditionally legislated by the States). Don’t need to prove that the topic is in relation to a matter of international concern.
Could possible lead to the Cth using treaties to interfere in many State powers
Brennan J’s two step test:
Does the treaty impose an obligation?
If not, the Act has to be justified as dealing with a matter of international concern.
Gibbs CJ dissented – stated that the external affairs power was not operative in this situation as the legislation did not affect Australia’s relations with other nations and heritage was not such a burning international issue
Richardson v Forestry Commission (1988) – An act established a commission to investigate if a certain area of forest in Tasmania could qualify for world heritage. The Act prohibited certain works from occurring within the area. The majority held the act to be valid.
The High Court has a broad view of complying with a treaty obligation
Limits on treaty power:
Treaty must be a bona fide international agreement (good faith)
Tasmanian Dam Case – treaty must be genuine – the Cth can’t rely on treaties ‘entered into merely to … confer legislative power upon the Cth’ (e.g. the Cth may enter into a bilateral treaty with a nation who they provide incentive to so they can interfere with State matters)
Cth legislation must be reasonably related to the treaty
Airlines of NSW Pty Ltd v NSW (No 2) (1965) – strict approach – is the Cth law appropriate and adapted to the implementation of the treaty?
Richardson v Forestry Commission (1988) – relaxed approach – could the Cth legislature reasonably form the view that the law was necessary to implement the treaty?
VIC v Cth (Industrial Relations Act Case) (1996) – middle position – the legislation must have a close enough connection to the treaty – ‘It is for the legislature to choose the means [of implementing the treaty] provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end’
Legislation conforms to a treaty if it is reasonably capable of being considered to be appropriate and adapted to its implementation
Treaty Power is subject to other constitutional limits on Cth power (both express and implied)
Thus applies to all s.51 powers – cannot override constitutional rights or guarantees
However, the HC doesn’t read down this power in reference to the jurisdiction of the States
‘power … [is] “subject to this Constitution” so that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained’ (R v Burgess; Ex parte Henry, per Evatt and McTiernan JJ, p.687)
E.g. Freedom of religion (s.??) Melbourne Corporation principle, freedom of communication, separation of powers
The Cth must implement a binding treaty power, not a mere aspiration
QLD v Cth (Daintree Rainforest Case) (1989) – A binding obligation is required but the HC won’t scrutinise a treaty (will look at the views of the international community to see if they think the treaty is intended to be binding)
Richardson – the HC held that the Cth could use the treaty power to pre-emptively fulfil a possible future obligation (e.g. if an area was going to be World Heritage listed)
Industrial Relations Act Case (1996) – there must be a specific obligation – a mere aspiration will not allow this power to operate (may be hard to distinguish – benefit of doubt is given to the Cth)
This case left the idea of whether an Act could be based on a recommendation – but the answer is No.
Power directed at legislation aimed at preserving Australia’s relations with other nations
Doctrine of comity – nations accept each other’s sovereignty
Thomas v Mowbray (2007) – ‘the pursuit and advancement of comity with foreign government and the preservation of the integrity of foreign states may be a subject matter of a law with respect to external affairs’ – per Gummow and Crennan JJ, p.364
E.g. R v Sharkey (1949) - upheld federal legislation upholding sedition (including sedition against the British Crown – the UK and other Cth countries). HC held that this law was within the power of the Cth as the law was necessary to maintain friendly relations with other nations of the Cth
‘The relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs’ - per Latham CJ, p. 136.
Power can be used to pass Cth legislation to recognise or exclude the operation of foreign laws in Australia (will also cover extradition)
Kirmani v Captain Cook Cruises (No 1) (1985) – concerned the validity of legislation excluding the operation of British Imperial Act in Australia. HC held that this law fell under the external affairs power – laws that clarify international laws are valid.
Possible to use this aspect of the external affairs power to authorise a mere aspiration on a topic of international concern (treaty power not applicable)
Tasmanian Dam Case – Mason, Murphy and Deane JJ supported this idea
HC has recently said that a mere aspiration wont be enough to enliven the external affairs power (Industrial Relations Act Case) – need either a binding obligation or the doctrine of comity
How do you work out if a matter is of international concern?
Brennan J in Polyukhovich – ‘international concern’ is vague so that it should be approached with caution – need proof (e.g. clear expression by the international community, adhered to in international practice)
External affairs power authorises a broad range of Cth laws – can pass a law on anything and rely on the external affairs power – only need a relevant treaty (there are many treaties about a vast range of matters)
This power poses a significant threat to the federal balance
Industrial Relations Act Case shows that the court is becoming more cautious about applying the treaty power
Defence Power
s.51(vI) – ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.’
Defence power is a concurrent power – but there are a number of constitutional provisions relevant to defence:
s.68 - ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.’ executive has control over day to day military operations
s.114 - ‘A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force [...]’ States cannot establish a defence force (the defence power is more than just establishing a defence force)
s.119 - ‘The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.’ in return for States not establishing an army, the Cth will defend the States from attack (e.g. military protects States from internal violence)
Nature of the Power
Elastic – the scope of the power changes depending on the historical and social circumstances (war time or peace time)
Andrews v Howell (1941) – ‘its application depends upon facts’ such as ‘the existence and character of hostilities, or a threat of hostilities, against the Commonwealth’ – per Dixon J, p.278
Australian Communist Party v Commonwealth (Communist Party Case) (1951) – Fullagar J has identified two aspects of the power:
1. Primary – Laws that have defences as ‘their direct and immediate object’ (core)
2. Secondary – a range of matters only indirectly related to defence (penumbra)
Purposive – authorises legislation with a particular purpose (not a subject matter power)
Purposive power can cover laws on a large range of subject matters as long as they relate to a certain purpose
Stenhouse v Coleman (1944) – is a matter ‘incidental or conducive to the prosecution of a war that is being fought’
Relevant characterisation is one of proportionality, not sufficient connection to a subject matter
The Wartime Power
The defend power is extremely broad during wartime – can regulate any aspect of the economy or Australian life
War time – a war that Australia is involved in as a party (scope can vary with the extent that Australia is involved in)
Farey v Buryett (1916) – concerned legislation fixing the price of bread during wartime. HC upheld law under defence power. Law not directly concerned with defence but assisted the war effort (need to tightly control the economy)
Scope of defence power is virtually unlimited during a time of total war where Australia is threatened
Lloyd v Wallach (1915) – HC upheld legislation giving a minister the power to detain anyone who threatened the defence of the Cth during WWI
Legislation during war covers a very broad range of matters – price controls, rent controls and employment regulations
Taxation and defence – First Uniform Tax Case (1942) – held that the defence power supported the seizure of tax office personnel and property as it was wartime and fund were needed for the war
Limits on the wartime power:
R v University of Sydney; Ex parte Drummond (1943) – legislation placed limits on the number of students admitted to uni. Cth argued this was needed to support war effort. HC rejected this as there was no attempt to encourage people to contribute to the war – need a sufficient connection to defence.
Industrial Lighting Case (1943) – restrictions on lighting for industrial premises. HC said law lacked a sufficient connection to defence. (‘no specific relation to the subject of defence’ – per Latham CJ, p.418)
Jehovah’s Witnesses Case (1943) – Cth declared Jehovah’s witnesses a ‘subversive organisation’ which allowed government to seize group’s property and prohibit publications. HC said restrictions were unsupported by the defence power as this legislation can be used for purposes not related to defence.
The Transition to Peace
Defence power authorises laws managing the transition from war to peace
Scope at this time is less than in war time but more than in peace time
Law may deal with the repatriation and rehabilitation of soldiers, rebuilding a destroyed city
Limits on the Transition to Peace Power:
R v Foster; Ex parte Rural Bank of New South Wales (1949) – HC held that a number of WWII regulations could not be sustained after the war (restriction on employment, petrol sales and supply of residential housing). The power does not cover ‘any problem […] created or aggravated by the war’ for an indefinite period as this would amount to a general power.
‘the cessation of hostilities leaves behind various matters which can legitimately be made the subject of Commonwealth legislation as being incidental to the execution of the defence power in the past’ –p.81
