Inconsistency - Prepared answer

Tuesday, 19 April 2011 8:37 AM

Intro s109 Constitution says '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'. This provision serves dual purposes - it provides a mechanism for settling disputes between states and cth, and protects individuals from the injustice of having t o face conflicting laws.

Interpretation of s 109 Initially, this was interpreted narrowly through the impossibility of simultaneous obedience test. Under this interpretation , Cth legislation would only override states 'This direct test of inconsistency, applied by the HC in R v Licensing Court of Brisbane, ex parte Daniell (1920) reflected the courts' desire to allow a large amount of power for the states. - Application - (ie laws mutually exclusive, obeying one means you automatically contravene the other). aust boot trade - possible to obey both even if different, not inconsistent. The courts later moved to a slightly broader approach, adopting the conferral of rights test in ???. This approach meant that a state law is invalid under s 109 when a cth law takes away a right that the cth law is conferring, as was the case in Colvin [Calvin?] v Bradley Brothers Pty Ltd). The decision in Clyde Engineering Co Ltd v Cowburn finally moved courts towards a wide approach which conferred a much greater amount of power on the Cth Parliament. This appr oach is referred to as the test of indirect inconsistency, and provides that where the cth intended to exclusively cover the field or subject matter, and state legislation exists in that same field, the state law is invalid under s 109. - Application: What is the subject matter/field? Did cth intend to exclusively cover the field? Does the state law operate in the same field as the cth law, or in some way regulate part of the subject matter or field? - Consider how much duplication there is - Cth must intend to CTF 'completely, exhaustively or exclusively' and not just to make legislation that is merely meant to be 'supplementary to or cumulative upon State law' - Ex parte McLean - If the cth expressly declares that they do not intend to cover the field, known as clearing the field, there will be no indir ect inconsistency. However this declaration is no good if a direct inconsistency exists - s 109 will still apply. Can only clear the field prospectively, not retrospectively, and only where there is indirect inconsistency. - If a right conferred is absolute, then it automatically covers the field (Ansett v Wardley) The three tests overlap, and are generally applied as a whole, since an inconsistency for the purposes of s 109 will exist ev en if only one test is satisfied (Comm Radio Coffs Harbour v Fuller). The courts may find an inconsistency using more than one test (Ansett v Wardley). If cth declares an intention to clear the field/preserve the state laws: The cth may choose to expressly declare their intention to preserve state laws by negatively legislating, known as clearing t he field. In such cases, the state law will only prevail where the inconsistency is merely indirect - Parliament's intention to clear the field is irrelevant where the inconsistency is a direct one, and the Cth legislation will still prevail under s 109. (See, for example, s 131C Australian Competition and Consumer Act 2010 (replacing s75 of Trade Practices Act 1974) Retrospective amendment: The Cth cannot retrospectively clear the field (can clear the field as of the current date, but not before then) - viskauskis v niland - can retrospectively legislate for itself, but cannot retrospectively impose as state law the provisions of a law which the constitution has said was invalid because of contempora neous inconsistency which has subsequently been removed. - Dissentors in University of Woolongong v Metwally said that cth could clear the way for states to introduce a retrospective law. Generally, though, cth cannot override s109, a 'selfexecuting machine'. Cases - apply facts: Clyde Engineering Co Ltd v Cowburn[1]
Facts: A state award prescribes the ordinary working week as 44 hours (with overtime), whereas the relevant federal award f ixed ordinary working week at 48 hours (no overtime). Although it was possible to comply with both laws (by working a 44 hour week), this denied the rights of the employer under t he federal award. However complying with the federal award denied the rights of the employee. As such, no direct inconsistency was found, as each of the laws protected a different righ t. Law/Outcome: Issac J, at *489+, established the cover the field test:

Was the second Act on its true construction intended to cover the whole ground and, therefore, to supersede the first? If it was so intended, then the inconsistency would consist in giving any operate effect at all to the first Act, because the second was intended entirely to exclude it.
Principles: Established indirect inconsistency test, and suggested it should be the starting point, with tests 1 and 2 follow ing in cases where the field is left partially open. Indirect inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions (Isaacs J).

Ex parte McLean[2]
Facts: Firth, a graizer, alleged that McLean, a shearer, had neglected to fulfil his contract of service due to incompetence, making him liable for a penalty under NSW legislation (s4, Masters and Servants Act 1902). McLean argued that as they were both covered by a federal award made under the Commonwealth legislation ( Conciliation and Arbitration Act 1904), that the State Act was invalid by s 109. Law/Outcome: Cover the field test became authority when Dixon J found in favour of McLean because the same acts or omission s were made subject to different penal sanctions in State and Commonwealth. Principle: If the same act or omission is penalised differently under two different laws, there is s 109 inconsistency UNLESS it is shown that the intent of the legislature was merely to be supplementary to or cumulative upon State law. Legislature must have intended to cover the field completely, exhaustedly, or exclusively. Telstra Corporation Ltd v Worthing[3] Facts: A Telstra (Commonwealth) worker was injured, and made a claim under the Workers Compensation Act 1987 (NSW), which had a different compensation scheme than that under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Telstra thus argued the claim should be struck out because of inconsistency.

Law/Outcome: Court applied Test 2, by saying if it was applicable, the state law would deny or vary a right power or privileg e conferred by federal law (in this instance, the right of the employer). As such, there was an inconsistency under s 109. Principles: When a state law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parli ament, then to that extent it is invalid (sometimes suggested this a fourth test of inconsistency).
Commercial Radio Coffs Harbour v Fuller [4] Facts: Commonwealth gave a licence for a new commercial radio station in Coffs Harbour, under Broadcasting and Television Act 1942 (Cth), conditional on the construction of two antennae. An environmental group sought to stop construction by seeking further environmental impact statements under the Environmental Planning and Assessment Act 1979 (NSW).

Law/Outcome: Ultimately found Commonwealth Act intended to be supplementary to or cumulative upon State law (McLean). No in consistency under:
Test 3 laws directed for two different purposes, occupying different fields (subject matter approach); Test 2 the licence that required the company to install the antennas didnt give absolute authority to do so (other laws still had to be adhered to); or Test 1 A licensee would be guilty of an offence for failing to adhere to the conditions, however this stopped short of requiring non -compliance with any State law.

Constitution Page 1

 Test 1 A licensee would be guilty of an offence for failing to adhere to the conditions, however this stopped short of requiring non -compliance with any State law.

Principles: Authority for the notion that you have to apply all three tests, as inconsistency exists even if only one is sati sfied.
Ansett Transport Industries (Operations) Pty Ltd v Wardley [5] Facts: Ansett Australia refused to hire a female pilot because of her sex. Section 18 of the Equal Opportunity Act 1977 (Vic) made sex-discrimination in employment or dismissal unlawful, and Ansett was ordered to employ her by the Vic Equal Opportunity Board. Ansett argued the s18 was inconsistent with cl 6B of Air line Pilots Agreement 1978, stating Ansett could dismiss pilots of less than 6 moths service by giving seven days notice in writing (which had been certified under the Conciliation and Arbitration Act and therefore deemed to be a Federal award). Law/Outcome: Subject matter approach adopted. Ansetts claim failed based on the fact the Agreement was not a general industr y award, and cl 6B merely assumes the right of dismissal provided by the general law. As the general law in Vic had been altered by the State Act, and the agreement did not seek to c over the fled of the employers substantive right to dismiss (it covered the process, but not grounds was not intended to cover sex-discrimination), there was no inconsistency. Principles: Tests 2 and 3 are interrelated if rights conferred are absolute, then it covers the field.

Australian Mutual Provident Society v Goulden [6] Facts: Man who had been blind since birth took out life insurance policy with AMP, and later sought to vary the policy with a waiver of premium benefit. AMP refused because Goulden was blind, matter was heard by NSW Equal Opportunity Tribunal under Anti-Discrimination Act 1977 (NSW). AMP argued a clause in the Life Insurance Act 1945 (Cth) Law/Outcome: The Commonwealth Act gives registered life insurance companies outright authority to classify risks and fix rate s of premium in accordance with its own judgement (founded on the advice of actuaries). State legislation that would prevent this course of action undermines, even negates, the stringent regulatory controls the Commonwealth has put on the life insurance industry through the Act. Inconsistency was therefore found. Principle: A State law is rendered inconsistent if it would alter, impair or detract from the operation of a Commonwealth l aw (Test 2 application - see Telstra) APLA Ltd v Legal Services Commissioner (NSW) [7]
Facts: NSW regulation prohibits the advertising of legal services for personal injury. Using a Goulden argument, APLA tried unsuccessfully to argue the regulation impaired the function of a series of Commonwealth laws designed to provide compensation for victims of personal injury (including Trade Practices Act 1974 (Cth)).

Outcome: The operation of the Cth laws do not require unrestricted promotion of legal services, and therefore s 109 didnt ap ply. Kirby J, however, argued that people need to be informed of their rights to take action, and this may be seen as an impairment (laws should protect vulnerable people to the same exten t they protect big insurance companies)
Commonwealth v Western Australia (Mining Act Case) [8]

Facts: Whether a perimeter area of a defence practice area, potentially subject to the Mining Act 1978 (WA), was inconsistent with regulations made under Defence Act 1903 (Cth). Law/Outcome: High Court found the Cth Act had not covered the field, and was merely operational inconsistency. Mainly a hyp othetical exercise, operational inconsistency may arise in particular circumstances when legislative powers and functions are actually exercised. Until its exercise, there is no incons istency, and the State provision is only inoperative in the particular circumstances in question. As such, no s 109 inconsistency exists. Policy question on inconsistency: - Implications: More power to cth. Cth can exclude state powers in all areas where their powers are concurrent (tempered by ???) eg Metal Trades Association v Amalgamated Metal Workers and Shipwrights Union (1983) 152 CLR 632 - judicial assessments determining the intents of parliament may be problematic, as it's too subjective - results might ultimately be based on policy preferences of the judges. Also, judges try to get into cth parl's mind by looking at the legislation, but intention often differs depending on the MP. Often legisl ation is a result of fudged parliamentary compromise. Sometimes judges get it wrong, as happened in Visconsin). In metwall, HC prevented retrospective amendment (didn't want to admit they got it wrong). Parliament said they wanted to clarify what they meant in the past, to have the effect of retrospectively clearing the field. Why not? says Alan. Argument is that equity can't flow upstream - the constitution and s109 makes the call at the time, so it's not up to the Cth to override that. - Court may find inconsistency using more than one test - eg Ansett Transport Industries v Wardley. (sex discrimination case - state anti-discrimination laws in contradiction with fed dismissal for any reason clause within first 6 months. Found fed agreement wasn't intending to confer an absolute right to d ismiss. Note the good policy outcome - often case decisions are driven by these factors. Dissents by aicken and barwick. Note the broad parameters the court has to determine inconsist ency. Compare Ansett v Aust Mutual Provident Society v Goulden: Could have found same result for goulden as in ansett, by taking a subject matter approach. Instead took conferral of rights/cover the field approach. Different result as a result of policy considerations - need actuarial tables etc in life insurance.

Constitution Page 2