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9.1 [s109] Inconsistency.doc

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Queensland University of Technology

Inconsistency: s109 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. There is no need to rely on s 109 if • Cth law invalid—no head of power; or • State law invalid—relates to an exclusive Commonwealth power (eg, s 90) Definition of a Law • Where a State law generally on some other topic happens to collide with a Commonwealth law passed under an exclusive power, s 109 will still be relevant: R v Brisbane Licensing Court; Ex parte Daniell (federal electoral law—state votes cannot take place on same day as federal votes—conflicting state provision of no significance) • Common law automatically abrogated by any valid statute anyway: Felton v Mulligan (1971) 124 CLR 367 at 370 per Walsh J • = Acts of the State or Federal Parliament: Engineers’ case (1920) 28 CLR 129 at 155 • Includes— o Delegated legislation developed by executive under legislation—rules, bylaws, etc: O'Sullivan v Noarlunga Meat Ltd (No. 1) (1954) 92 CLR 565. o Includes industrial awards: Ex parte McLean (1930) 42 CLR 472. • Does not include— o Administrative decisions made by public servants exercising executive power: Airlines of New South Wales Pty Ltd v New South Wales (No 1) (1964) 113 CLR 1. (Administrative directions, including air navigation orders, aeronautical information publications, notices to pilots, etc) Types of Inconsistency • There are three main types of inconsistent laws: o Mutually contradictory commands (impossible to obey both) o One law confers a right or privilege, the other takes it away or modifies it. o Commonwealth law covers the field Telstra Corporation Ltd v Worthing (1997) 197 CLR 61 at 76-7 • Categories not mutually exclusive 1. Direct Inconsistency • “direct inconsistency”, “direct collision”, “textual collision”, “actual inconsistency” 1A. Mutually Contradictory Commands (Impossible to Obey Both Laws) • Commonwealth law specifically invalidates certain type of State law: Mabo v Queensland (No 1) (1988) 166 CLR 186 (1982 Aborigines sue Qld based on land rights—Qld act provided that upon annexation of islands, they were subject to laws of Qld, no compensation —Cth Racial Discrimination Act: interference with right to own property  If native title rights could be established (Mabo No 2) the act was inconsistent under s109) • Commonwealth body not subject to State law: Telstra v Worthing • One law permits or commands, other forbids: R v Brisbane Licensing Court; Ex parte Daniell (Cth law prohibiting election ↔ State law calling election  State election invalid) Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151 (NSW: prohibited employment of women Andrew Trotter LWB242 2009-1 on weaving machines ↔ later Cth Arbitration Award: may employ women  State law inconsistent) • Both laws forbid, but have different penalties, class of crime etc: o Hume v Palmer (1926) (Hume breached NSW Navigation Act 1901 (sea traffic offence)—occurred in course of interstate trading journey—objected to jurisdiction ↔ Cth provisions different—penalties and sanctions imposed  inconsistent) o R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 (allegedly damaged Cth property—Qld Criminal Code (2-3 years with hard labour) ↔ s29 Cth Crimes Act (imprisonment for 2 years)—state legislation cannot add or subtract from Cth provision  inconsistent) • Not inconsistent where: o Two laws relate to different matters, even if they apply to the same set of facts: R v Winnecke; Ex parte Gallagher (1982) 152 CLR 211 (G charged with failing to answer question to State royal commission—Evidence Act (Vic) | Royal commissioner carrying out 2 simultaneous inquiries—Cth and State laws gave different penalties  State act dealt with enquiry under state authority | Cth Act dealt with enquiry under Cth Authority → not inconsistent) o One law extends the other, and the Cth law does not intend to be exclusive: McWaters v Day (1989) 168 CLR 289 (drink driving—Qld: driving under the influence generally = fine to 1400/9mths | Cth: 12mths for defence force members on defence force land  Cth law extended Qld law, provided extra penalty in this case → not inconsistent) 1B. One Law Confers a Right or Privilege, the Other Takes It Away or Modifies It • Industrial award cases: o Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 (engineering awards— NSW 44hrs/wk Act 1995: not exceed 44hrs ↔ Cth Arbitration Act 1914: each worker paid fixed wage for 48hrs—workers not attending lose pay for that time  inconsistent) o Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 (D employed M, failed to pay minimum wage—Vic Legislation gives minimum wage ↔ Cth specifies lower wage  obedience to one would be disobedience to the other → inconsistence) • Where Cth law prohibits something without a licence and State law also requires licence or permission: o But not if dealing with different aspects of the same activity: Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47 (s81 Cth Broadcasting and Television Act: license for commercial radios—conditions on location & height of antenna | NSW Environmental Planning and Assessment Act 1979: councils can control use of land—council approval appealed by resident based on NSW act  Cth law only related to commercial and broadcasting aspect of the antenna → leaves room for Cth or State laws on environmental (etc) aspects → not inconsistent) o Love v Attorney-General (NSW) (1990) 169 CLR 307 (s16 Listening Devices Act NSW: provided that use authorised by SC not a breach of general prohibition | s219B(1) Customs Act (Cth): regulated use in federal narcotics enquiries  not inconsistent) 2. Indirect Inconsistency: “Covering the field” • Cth law int
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