LAW 2501 Lecture Notes - Lecture 8: Clyde Engineering, Mexican Federal Highway 1, Statutory Interpretation
23 May 2018
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INSONSISTENT LAWS PQ PROCESS
ISSUE: client does not want to comply with a State
law **final point of advice
STEP 1: Is the State law valid?
STEP 2: If so, is there a Commonwealth law with
which it may be inconsistent? Is the Commonwealth
law valid?
STEP 3: Is there an inconsistency under any 1 of 3
tests?
• Impossible to obey both laws?
• Inconsistent rights, privileges or entitlements?
• Covering the field?
o Intention of the Commonwealth law
o Is the State law in the same field?
STEP 4: If there is an inconsistency, the State law is
invalid to the extent of the inconsistency.
BACKGROUND- why s 109?
1. Ch 5 of the Au C* saves the following powers of
the states
a. s 106 saving State C*s
b. s 107 saving power of State Parliaments
c. s 108 saving of State laws
2. the rule of law
a. Croome v Tasmania
i. Tas legislation prohibited sex between
males – Cth legislation provided that
sexual conduct between consenting adults
acting in private is not subject, by or under
any law of State or Cth, to arbitrary
interference with privacy
ii. Being part of a federation means citizens
can be subject to fed and state laws.
Impossible to know which to obey without
s 109
ELEMENTS OF s 109
STEP 1: s 109 of the C* provides that when a law of a
State is inconsistent with a law of the Cth, the latter
shall prevail, and the former, shall, to the extent of the
inconsistency be invalid
STEP 2: valid state and Cth laws
1. Firstly, there must exist a valid state law
a. According to s 5 of the Constitution Act 1943
(SA), ‘states have plenary legislative power’.
b. Given this, the State has the power to make
laws for any area including…
c. However, the law will be inoperative if it is
inconsistent with a Cth law (s 109 C*)
2. Secondly, there must be a valid cth law (go to
notes on relevant head of power)
a. s 52 Au C* vests the Cth parliament with
power to legislate with respect to…
- s 51(xx) corporations
- s 51(xxix) external affairs
-s 51(vi) defence
-s 51(ii) taxation
STEP 3: There must be an INCONSISTENCY
between the valid state and Cth laws.
GO THROUGH ALL WAYS. Whilst these do not
replace the constitutional text, there will be an
inconsistency if one, or a combination of, the
following tests are satisfied:
1. Impossible to obey both laws
a. Fact: is there a way your client can logically
obey both laws? List all ways!
i. *Cth - you must not do X; State you must
do X
ii. Eg R v Brisbane Licencing Court; Ex
Parte Daniell
• Cth: no referendum on day of fed
election; State law- referendum on day
of fed election
b. CONCLUDE No inconsistency/
inconsistency under this test
2. Inconsistent rights, privileges or entitlements
a. Fact: are there any rights given by one piece
of legislation which are taken away/ are
inconsistent with the other?
i. One statute is inconsistent with another
when it takes away a right, privilege or
entitlement conferred by that other
Clyde Engineering
• NSW law: workers ordinary hours
should not exceed 44 hours per week;
worker covered by federal award
fixing a longer working week to be
paid the full award for working 44
hours
• Cth: workers paid at fixed wage for
working 48 hours; Any worker not
working 48 hours to lose their pay for
time of non-attendance
ii. Find the entitlement – consider the
concept of a ‘right’- look to language of
legislation
• Would your client be able to do
something under the state law if it
weren’t for the Cth law (or vice
versa?)
• Language of legislation – ‘must’ not,
rather than ‘may’ not suggests taking
away freedom not conferral of rights
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Issue: client does not want to comply with a state law **final point of advice. Step 4: if there is an inconsistency, the state law is invalid to the extent of the inconsistency. Impossible to know which to obey without s 109. Step 1: s 109 of the c* provides that when a law of a. State is inconsistent with a law of the cth, the latter shall prevail, and the former, shall, to the extent of the inconsistency be invalid. Step 3: there must be an inconsistency between the valid state and cth laws. List all ways: *cth - you must not do x; state you must do x, eg r v brisbane licencing court; ex. Have they intended to use the legislation to do so: conclude: law probably does/ does not confer a right. Therefore inconsistency/ no inconsistency under this test: even if no inconsistency- always ask-
