Inconsistency: s 109

Basics

• In a federal system inconsistency is prone to arise (in Australia this occurs where there are concurrent powers such as in s 51); accordingly which law will prevail must be decided

• ‘Head on collision’ inconsistency was the only type of inconsistency recognised pre-Engineers when the reserved State powers doctrine applied.

Cases

Victoria v Commonwealth (the ‘Shipwrecks case’)

• Both Cth and State laws authorised the removal of shipwrecks that might be a danger to shipping by their own officials. Cth based on interstate trade and commerce power: Cth officials could remove the wreck.

• The HCA held that there was no inconsistency just because the laws were in existence.

• If State officials removed or destroyed a dangerous shipwreck, that would not undermine the Cth law. The Cth might be pleased to have the State officials do it to save them money and time.

• On the other hand, if on a particular occasion both officials decided to remove it and both came in and met over the shipwreck and had an argument about who was to remove it, at that point the two laws become inconsistent through the attempt to apply them at the same time.

• If a State and Cth law do come into conflict on such occasion, the Cth law will prevail. The State officials have to back off. This is in respect of only being invalid to the extent of the inconsistency.

• If they agreed between them who would do it, there is no inconsistency.

R v Licensing Court of Brisbane: Ex parte Daniell (1920)

• Cth law made it unlawful for State referenda to be held on the same day as a Cth election, while a QLD State law mandated the holding of a State referendum on liquor licensing at the next Cth election. The clash between the laws was such that electoral officials could not obey both laws.

• DECISION: the HCA said it was a clear cut case of inconsistency.

Australian Boot Trade Employees Federation v Whybrow

• Some State laws prescribed a lower minimum wage than Cth conciliation and arbitration legislation

• DECISION: the laws were found not to be constitutionally inconsistent, since it was possible to obey both laws by paying the higher minimum wage.

McBain v Victoria

• Victorian legislation compelled discrimination on the basis of marital status in relation to access to fertility treatment, while the Sex Discrimination Act 1984 (Cth) prohibited it.

• DECISION:It was impossible for IVF providers to comply with both so the State law was inconsistent.

This was the only type of inconsistency permitted to invalidate State laws in pre-Engineers times when the reserved state powers doctrine still applied.

Clyde Engineering v Cowburn

• Cth industrial award set a minimum 48-hour working week in a particular industry. Employers had to pay the full minimum wage if they worked the 48 hours, but they could pay less than the minimum wage if the employee worked less than 48-hours.

• State law said employees had to work 44-hours per week for the minimum wage and were to be paid overtime after that.

• Cowburn worked the 44-hour week and his employer deducted an amount in reliance on the Cth standard of 48 hours. Simultaneous obedience was possible, since the employee could work 44 hours and have pay docked for four hours for failing to work the 48-hours.

• DECISION: HCA said the law was inconsistent.

  • Cth law gave employers a right not to pay the full min wage if employee worked less than 48 hours. The State law took away that right. Additionally, the worker had a right to be paid for the full 48 hours, which the State legislation took away.

  • It was therefore inconsistent since it modified the right conferred by the Cth. HCA held it inconsistent to the extent of the inconsistency and that it was inapplicable to workers employed under the Cth award.

Colvin v Bradley Bros Pty Ltd (1943)

• DECISION: NSW legislation prohibiting employment of females on certain machinery was held inconsistent with a Cth law allowing them to be employed (took away the employer’s right to employ females).

Mabo v Queensland (1988) (‘Mabo No 1’)

• S 10(1) of the Racial Discrimination Act 1975 (Cth) provided that all members of a race who had previously not enjoyed rights enjoyed by other races would, by the force of the section, enjoy those rights. These rights included the right to own property and the right to inherit. The Queensland Coast Islands Declaratory Act (Qld) sought to diminish any rights of Indigenous people, should they be articulated by the HCA, specifically on the basis of their race.

• DECISION: The Qld statute was found to be inconsistent with the Cth statute, because it reduced the rights conferred therein.

Ansett Transport Industries (Operations) Pty Ltd v Wardley (re conferred rights)

(see below for facts)

• The pilots’ agreement (having the status of an industrial award) prescribed a certain procedure to be followed if a pilot was to be sacked; it did not have to be followed if the pilot was sacked within a year of commencing employment. The case came before the HCA within six months of Wardley being employed. Ansett argued that the agreement conferred absolute rights to sack people before 12 months and the Victorian Equal Opportunity Act 1977 (Vic) diminished that unlimited right, since it prohibited dismissal for reason of one’s gender.

• DECISION: Minority Barwick CJ and Aickin J held the Cth had intended to confer an unlimited right for airlines to dismiss staff before they had been employed for a year, so there was direct inconsistency.

• The majority found that the Cth had not intended to confer an absolute right to dismiss.

  • Three held the agreement was intended to regulate only the process for dismissing pilots, not the grounds on which they might dismiss them. Accordingly, there was scope for a State law regulating the grounds for...

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