Strongest general indication that it wants to cover the field is when it expressly says that it is doing so.
Then there can also be an implied intention to cover the field, in which case the subj matter is imp to discover this intention.
Can Cth expressly indicate its intention to cover the field & also stay silent? In Wenn v A-G (Vic) (1948), Cth Act provided for preference only in employment of returning soldiers & incl an express covering the field provision, whilst Vict Act provided for preference in employment & promotion of returning soldiers. HCA said there was inconsistency.
Could Cth expressly cover the field & do so in such a way by leaving some of the field vacant? HCA said ‘yes’ Cth could expressly cover the field & yet only regulate part of it.
Could Cth expressly decline to cover the field? Yes. Fed law may evince an intention not to make exhaustive or exclusive provision with respect to the subj with which it deals, thereby enabling State laws, not inconsistent with Cth law, to have an operation. See GMAC Case (1977) & Native Title Case (1995).
Where Cth law intended to cover the field, a law is valid even if it is characterised as being on the topic (because of multiple characterisation).
HCA clarified sit’n in:
WA v Cth (Native Title Case) (1995)
concerned validity of provision.
case makes 2 things clear:
Cth Parl could not forbid State Parl from enacting a law. See Brennan J in Gerhardy v Brown (1985) on p 147.
Cth can provide that its law covers the field & applies to the exclusion of State law (even expressly). See Native Title Case on p 149.
Botany Municipal Council v Federal Airports Corporation (1992)
confirms the provision in issue.
HCA said reg 9(2) was valid.
Notes (p 152):
What is the effect of express prov that Cth is not intending to cover the field? Is that binding? In reality ‘yes’ but ultimately a q for the cts.
Is a statement that Cth does not intend to cover the field a barrier to a holding of direct inconsistency? No because not talking about the same thing. See Mason J in GMAC Case.
Express & Implied intention to cover the field
Cth can expressly indicate its intention to cover the field – Dixon J in McLean (1930); MTIAA v AMWSU (1983).
Cth can expressly indicate its intention not to cover the field – GMAC Case (1977). In reality ‘yes’ although theoretically not conclusive.
If direct inconsistency is an issue, then a statement relating to indirect inconsistency is not determinative (although can be relevant).
Cth can’t prohibit State Parl from enacting the law – Gibbs CJ & Brennan J in Gerhardy v Brown (1985).
Cth can impliedly indicate an intention to cover the field – Isaacs J in Clyde Engineering v Cowburn (1926). This can be done by considering the nature & scope of the Fed law – Wenn v A-G (Vic) (1948).
Criminal Law Cases
Kelly v Shanahan (1975)
Cth has Crimes Act 1914 & offence to steal Cth prop.
Qld has Cim Code & offence to steal prop incl Cth prop.
stole public phone (Cth prop).
was there inconsistency? Yes.
R v Loewenthal (1974)
demo in Bris that resulted in smashing of a Cth plate glass door.
Qld Crim Code – offence to wilfully destroy prop.
Crimes Act – offence to wilfully destroy Cth prop.
person was prosecuted under State code > was that a valid prosecution?
were the State laws inoperative because of Cth?
arg for non-inconsistency: the more laws that protect prop, the better.
arg for inconsistency: implied intention to cover the field (because no express).
HCA held: there was an implied intention to cover the field.
R v Gregory (1983) CCA NSW
a person convicted of a Fed offence imprisoned in State gaol & escaped.
this was an offence under State Prisons Act (escaping from State prison) & Crimes Act (escaping whilst under custody for Fed offence).
did Cth intend to cover the field? Yes.
R v O’Brien (1981)
Cth hosp in Perth & nurse held at gunpoint & drugs seized, constituting 2 offences.
WA – offence of robbery (stealing with violence).
Crimes Act – does not have offence of robbery, only stealing.
Therefore, robbery under State law & stealing under Cth law.
Did Cth impliedly intend to cover the field (of all stealing type of offences)?
Because well recognised distinction, the failure to mention robbery meant that Cth did not want to cover it & therefore wanted to cover only stealing.
Classic eg where no mention to cover the field because clear distinction at common law betw’n 2 crimes & therefore Parl did not intend to cover it but only the field they dealt with.
Clixby v Western (1988)
2 potential offences: person stole Cth car & someone else was passenger.
NSW – joyriding.
Cth – does not have an offence of joyriding, only stealing.
complication – NSW provided that joyriding shall be deemed to be larceny (which is stealing).
is there an implied intention to cover the field?
held: diff offence; mere fact it is deemed means in relation to penalty.
has the Cth intended to cover the field? Probably in relation to stealing but not joyriding.
R v Stevens (1991) CCA NSW
Cth limited largely to importation of drugs, & State can deal with use of drugs.
Conspiracy to import drugs contrary to Cth law, & conspiracy to supply drugs contrary to State law.
Did Cth impliedly intend to cover the field?
Ct said there was no intention to cover the field as purpose of 2 Acts diff’nt (Cth concerned with importation & State concerned with use, supply & possession of drug in NSW) – ie, no inconsistency.
Note: every Cth law expressly deals with the topic, but for the Cth law to expressly cover the field, it must expressly say “this law is intended to cover the field” or say what State law’s pos’n should be.
Uni of Wollongong v Metwally (1984)
In Viskauskas v Niland (1983), HCA held that RDA 1975 (Cth) covered the field & was inconsistent with Anti-Discrimination Act 1977 (NSW).
After Viskauskas v Niland was decided, RDA was amended to provide that it “is not intended, & shall be deemed never to have been intended, to exclude or limit the operation of a law or Territory (emphasis added)”.
There is no doubt that Cth could prospectively indicate that it did not intend to cover the field.
What was the validity of the retrospective part? HCA held 4:3 (Gibbs CJ, Murphy, Brennan & Deane JJ; Mason, Wilson & Dawson JJ dissenting) that it was not effective & Cth Parl could not retrospectively revive State law previously rendered inoperative by s 109. Cth Parl was bound by s 109 & cannot therefore make consistent what Const rendered inconsistent (can’t revive State law which Const has rendered inoperative).
Note: none of the judges denied that Cth can legislate retroactively (retrospectively).
Mason J (dissenting) said s 109 is not particularly concerned with rights. In order to decide if there is inconsistency:
see if Cth has intended to cover the field
Cth can retrospectively legislate
Cth can retrospectively legislate that it intended to cover field or not.
The reasoning in Metwally is unsatisfactory. HCA did not deny that Cth could enact retrospective laws but maj said Cth could not retrospectively revive State law so that the Cth did not cover the field. Therefore diffs are created.
Whilst Cth can plainly indicate that it intends to cover the field or not, Metwally suggests that Cth cannot retrospectively indicate that it did not intend to cover the field (unsure as to whether it could).
What happens to rest of State law? If inconsistent part can be severed & rest can survive, then it survives thro’ State equivalent of s 15A of AIA (q is can it survive on its own, is remaining part viable).
Operational Inconsistency
Hybrid sit’n where laws are not inconsistent but merely the operation of them is.
Victoria v Cth (Kakariki Case) (1937)
Cth & State made provision for removal of shipwrecks.
Cth dealt with ships in waters used for interstate or international trade.
State was more general.
HCA said no inconsistency but at most, there was operational inconsistency (if there were simultaneous attempts by Cth & State to remove the same wreck). If you had ordinary inconsistency, then the State law would be inoperative.
Re Tracey; Ex Parte Ryan (1989) per Gaudron J
people in armed forces could be tried for crim matters in military cts or crim cts.
State law not rendered inoperative but if tried in military ct, then there is an operational inconsistency in that particular case.
Topic Summary – s 109:
Apply the 3 tests in order so as to determine whether there is inconsistency.
Firstly, apply the “impossibility of simultaneous obedience test” (direct inconsistency) – ie, apply both laws simultaneously to see if there is inconsistency.
Then there is the “denial of rights” test (direct inconsistency) – ie, there is an inconsistency of rights (issue is whether one law takes right away from the other. See Dixon J in Kakariki Case.
Thirdly, there is the “covering the field” test – whether Cth has expressly (express words saying it intends to cover the field, thereby rendering State law inoperative) or impliedly (look at whether there could be a hybrid sit’n where Cth is assuming the continued existence of State law; look at issue, coverage, nature, scope & subj matter of Cth law to see if is impliedly covering the field) intended to cover the field.
WK 5.1
14/8/00 External Affairs
By s 51 (xxix) of Const, Cth has pwr to legislate for ‘External affairs’
Pwr to make laws with regard to Aust’s relations with other countries.
Introduction to Aust’s independence
There is some debate as to when Aust became an independent nation.
When Aust was formed it was a self-governing colony in British Empire (ie, it was not independent).
In 1901, Aust did not have independent relations with other countries, & the pwr to regulate Aust’s relations legislatively was with Br & Emp. There would be possible expansion in later yrs as the grant of pwr with respect to defence & external affairs were seen as “indications that the Const created a polity with potential nationhood” (Zines). As Barwick CJ said in NSW v Cth (Seas & Submerged Lands Case) (1975), these pwrs are indicative of the fact that Aust would become the nation state, internationally recognised & independent”.
Colonies before Fed were self-governing colonies in Br Emp that had separate independent relations with Br Emp. From 1887, there was a growing movement towards Fed.
What happens after Fed? Aust was a Cth at the Colonial Conferences.
Vondel incident (1902) concerned a Dutch ship which called at Adelaide; seaman escaped & was captured & roughed up by Adelaide police; Dutch demanded compensation; issue was who would pay the compensation – Cth (Aust colony within the Br Emp).
In 1907, at Colonial Conference, again the Cth was invited.
Aust ctd as a self-governing colony (issues relating to foreign affairs, & ‘war & peace’ were handled by Br).
Br declared war on behalf of the Empire in 1914. War feeling made the Br Dominions (ie, Can, Aust, NZ, Sth Afr, Newfoundland & Irish Free State) think about ‘autonomy’.
Imperial War Conference of 1917 > Dominions were “autonomous nations of an Imperial Cth”.
1926 Imperial Conference > defined pos’n of Dominions as “autonomous communities within Br Emp & equal”.
Versailles Treaty & Imperial Conference of 1930 > increase in asserting their independence.
The political reality of the degree of independence actually enjoyed by Aust & other British colonies was recognised in resolutions passed at Imperial Conferences of 1926 & 1930.
Statute of Westminster 1931 – legal statement of independence (Br statutes could no longer apply to Dominions & in these colonies, laws could be passed contrary to Br ones); adopted in Aust in 1942 but backdated to 1939 > Aust became a sovereign nation both politically & legally (gradual process without amendment to text of Const). This Act accorded Cth pwrs appropriate to political status Aust had acquired in world community.
But States did not have pwr to enact leg’n contrary to Br until 1986 with Australia Act.
Aust began asserting its independence in 1939. Br declared war in WWII for itself & not on behalf of Br Emp as a self-governing colony (like Canada), although Menzies believed that Aust should declare war because Br did.
So, in terms of when Aust truly became independent, it is still a matter of debate. Some say 1926 or 1931 & asserted by WWII, or if incl States, some say 1986.
Therefore, Aust speaks to world in one voice, & is a sovereign nation recognised by world community on international scene (Zines).
Treaties
There are 3 categories of treaties:
Major political treaties (Br made these on behalf of Emp until 1926).
Commercial treaties (also made by Br on behalf of Emp until 1926 but diff was that there was increasing recognition that Dominions had right to opt out or in).
International agreements (like contracts) – do not go thro’ Br.
Treaties are made by Crown (gov’nt); it is an exercise of exec pwr & is made under s 61 of Const.
It has been accepted since 1926 that Crown Gov’nt can make treaties on any subj matter. Gibbs CJ in Koowarta (1982) said “The Gov-Gen, exercising the prerogative pwr of the Crown, can make treaties on subjects which are not within the legislative pwr of the Cth” (p 274), & Stephen J in Koowarta said “The pwr of the federal Exec to conclude treaties upon any subj-matter it sees fit is undoubted” (p 288).
Negotiators from diff countries meet & swap ratification doc’nts. Treaty is then recorded by United Nations.
In Aust, treaties made by exec have no force in domestic legal sys until they are implemented legislatively (ie, for the treaty to fall into domestic law, it must be incorporated by statute).
Exec can make treaty which is then recorded by UN. Ratification is an act by which exec commits itself to international law. However, s 1 of Const says that such treaties do not become part of domestic law until they are legislatively passed by Cth Parl (ie, s 1 does not allow treaties to have domestic effect).
In Bradley v Cth (1973), HCA said that a UN Act does not incorporate it into Aust domestic law.
Whilst there is pressure if exec has made a treaty to honour it by having Cth Parl legislatively incorporating it into domestic law, this is purely political & diplomatic pressure (Zines calls this “international obligation”) & not legal pressure. However, by s 1 of Const, Cth Parl does not have to pass it. Regardless, a treaty terminating a state of war is automatically incl in domestic law (Koowarta per Mason J on p 280).
Eg: Racial Discrimination Convention has been implemented into domestic law (& if it had not been, Aust would have appeared hypocritical).
There are 2 ways in which a treaty can be implemented (incorporated into domestic law):
Easy way: treaty annexed to this Act is to be part of domestic law, & have a few machinery provisions. Eg: Racial Discrimination Act 1975 (Cth). This way is safe but unsatisfactory.
Other way: try & enact a statute that embodies the purpose of the treaty.
Treaty implementation
2 issues:
is there any subj matter limitation?
if treaty can be implemented, whether it has been.
Eg: defence treaty can be implemented under s 51(vi), GATT treaty under s 51(i). So, if the subj matter of the treaty corresponds with a subj of federal pwr, no constitutional prob arises. Only if there is no corresponding subj of fed pwr do you need to rely on “external affairs” of s 51(xxix).
Zines says that the most controversial issue for many yrs was whether Cth pwr to legislate under s 51(xxix) to give effect to international agreements was limited to those that dealt with subjects of a particular kind – ie, were there some agreements which raised matters of external affairs, whilst others did not? If so, what was criterion?
All said that Cth could implement all treaties subject to 1½ limitations (subj to express & implied Const prohibition; it must not be a sham treaty).
Even on narrow view, treaty could be implemented > therefore, this case is not considered to have really decided the matter.
Cth enacted leg’n regulating air navigation – relied on s 51(i) & failed, & also relied on ‘external affairs’ pwr (implementing treaty).
HCA was divided on issue of whether Cth could implement all treaties (3 said ‘yes’, 2 said ‘no’ although probably ‘yes’).
Latham CJ: Cth could implement any matter; no subj matter as per se was outside the area of international significance (see p 278 – “To-day all peoples are neighbours”).
Evatt & McTiernan JJ: agreed & went further; Cth could not only implement all treaties but could also implement international recommendations (this is the broadest view). They regarded a recommendation by an international organisation as providing a sufficient basis for leg’n under the external affairs pwr.
Starke J & Dixon J adopted the narrow view & said Cth, under s 51(xxix), can only implement treaties if they deal with matters that are themselves external affairs. Dixon J said if treaty dealt with matter that was “indisputably international in character”, it could come under ‘external affairs’. Starke J, adopting Willoughby’s view, said laws would be in pwr only if matter was of “sufficient international significance” (& Paris Air Navigation Convention dealt with a matter truly international in character).
Majority held that the Act departed too greatly from Paris Convention & therefore invalidated the regs.
Summary:Burgess shows judicial endorsement of a broad reading of the external affairs pwr (3:2). The broad view was adopted by Latham CJ, & Evatt & McTiernan JJ. The narrow view was endorsed by Starke J & Dixon J. The diff’nt view, however, was not critical in this case.
Koowarta v Bjelke-Peterson (1982)
1st case in which it was critical as to which view was endorsed.
3 issues:
whether Racial Discrimination Convention could be implemented.
whether it had been. Qld said ‘yes’ & majority said ‘yes’
whether Racial Discrimination Act 1975 (Cth) could be valid under external affairs pwr without the treaty.
RDA implemented the terms of RDC (a Convention signed & ratified by Aust) as a law with respect to external affairs.
Could Cth implement all treaties? (remember broad view of Latham CJ, & Evatt & McTiernan JJ; narrow view of Dixon J & Starke J).
In this case, broad view of pwr to implement treaties was adopted by Mason, Murphy & Brennan JJ, narrow view was endorsed by Gibbs CJ, Aickin & Wilson JJ, & a broad/liberal view of narrow view was adopted by Stephen J. Therefore, it is an unsatisfactory case (in particular since it was Stephen J’s last day on the job).
Leg’n was upheld (4:3) > held valid by Stephen, Mason, Murphy & Brennan JJ.
Gibbs CJ:
Narrow view was premised on notion of ‘federal balance’. This means the Const is a federal doc’nt & every prov of Const must be read in context.
Give narrow view to s 51(xxix) so as to preserve the federal balance; resolve ambiguity in favour of maintaining a federal balance (allow States to retain a sphere of exclusive authority).
Should not interpret external affairs pwr in such a way as to give it unlimited legislative authority (limitless potential).
Mason & Murphy JJ criticised this doctrine as being ‘reserved state pwrs’ thinking.
However, it is worth noting the distinctions betw’n these two doctrines. With ‘reserved state pwrs’, there is the assumption that State has a list of what State can do & what Cth cannot do. The notion of ‘federal balance’ does not assert that there is a list but says that States must be left with something (with certain things). This latter notion does not take s 107 as its basis, but rather, is derived from the overall character of the Const as a federal instrument & from fact that Cth leg pwr is limited to a defined list of subj matters.
Adopted the narrowest test ever for treaty implementation (p 294.5): pwr only extended to a treaty whose provs could be described as a matter of external affairs, apart from fact that it imposed an international obligation or gave rise to an international concern. Eg: if it regulated relations betw’n Aust residents & those of other countries (ie, relations with countries, persons & things outside Aust).
Mason J:
Rejects ‘federal balance’ as being ‘reserved state pwrs’.
Says 2 main things:
It is not a viable criterion to distinguish treaties from others > political judgment as to whether something is appropriate for international action (see p 283.9).
Policy: Aust needs a broad treaty implementation pwr (in this day & age) to be an effective operator. Aust’s international stance & participation in world affairs would be seriously weakened if it is unable to give effect to its obligations (see p 281.3, 283.3, 283.7).
Aust is party to an international treaty & is therefore bound with other nations to enact domestic leg’n to achieve the common objective of eliminating all forms of racial discrimination.
Brennan J:
Agreed with Murphy & Mason JJ & said there is no need to have a separate international concern.
Criterion: treaty itself is enough evidence to support implementation under s 51(xxix).
see p 287.1, 287.2
Stephen J:
Treaty had to possess an additional character: it had to be a matter of “international concern”. For that purpose it was necessary to look at history of matter, terms of negotiations, recommendations, agreements & diplomatic & other actions by other countries. From these factors one could deduce the importance of the matter to Aust’s international relations. If there was evidence of a sufficient degree of international concern then the subj matter was one of ‘external affairs’.
ie, whether subj matter affects our relations with other countries.
Racial discrimination was indeed a matter of international concern, evidenced by 3 decades of diplomatic activity & UN action (minority said irrelevant because convention concerned racial discrimination within each country & was not confined to nationals or residents of other countries – subj of convention therefore did not satisfy external affairs matter).
On the issue of whether RDA could be valid under s 51(xxix) without treaty:
Stephen J: RDA would probably have been valid without treaty because subj matter seen as against “customary international law”; Aust has an international obligation to suppress all forms of racial discrimination out of respect for “human dignity & fundamental rights” (p 291.8).
Mason J: it would have been implemented as both customary international law or international concern.
Brennan J: said you do not need to discuss if there was no treaty because there is one.
Like in Burgess, all recognised the 1½ limitations upon s 51(xxix).
See discussion of “sham treaty” which is basically an “escape clause” & is bullshit (Mason J 284.4; Brennan J 287.3; Stephen J 281.5/8; Gibbs CJ 293.8).
Summary of Koowarta
Can Cth implement treaties on all subj matters (issue 1)?
Args for & against made more fully here than in Tasmanian Dam Case (1983), esp on ‘fed balance’ & args for & against broad & narrow view. Now in favour of broad view.
Mason, Murphy & Brennan JJ saw external affairs pwr as enabling Cth Parl to legislate to implement treaty obligations.
On other hand, Gibbs CJ, Aickin & Wilson JJ adopted view that a law which gave effect within Aust to an international agreement would only be a valid law under external affairs pwr if the agreement was with respect to a matter which itself could be described as an external affair.
Although Stephen J sided with Mason, Murphy & Brennan J to uphold the leg’n, he took the view that treaty had to be a matter of “international concern” for the external affairs pwr to be used.
RDA would probably have been valid under this pwr [s 51(xxix)] even without treaty because dealing with
