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Law Notes Federal Constitutional Law Notes

Inconsistency Notes

Updated Inconsistency Notes

Federal Constitutional Law Notes

Federal Constitutional Law

Approximately 408 pages

Cases and materials summary notes based on Blackshield & Williams Constitutional Law (2011), super summaries intended for easy reference in an open book exam and "policy notes" geared towards writing essays. Structure of the cases and materials summary notes are as follows:

Class 1- Fundamentals of Australian Constitutional Law
Class 2&3 - The high Court and Constitutional Interpretation
Class 4 - The High Court and Characterisation
Class 5 - Inconsistency
Class 6&7 - Economics Powers
Cl...

The following is a more accessible plain text extract of the PDF sample above, taken from our Federal Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Inconsistency

The meaning of invalid

  • The CV writers note that the means of resolving conflicts between powers held concurrently by the State and Commonwealth (most of the s 51 powers are), s 109 provides a means of resolving them by saying that Commonwealth laws prevail to the extent of any inconsistency

    • They also note that s 5 of the Constitution may have fulfilled this function anyway as it provides that CTH laws are “binding on the courts, judges and people…of every part of the Commonwealth”

  • The other points noted by the CB writers are covered by Latham CJ in Carter v Egg and Egg Pulp Marketing Board (Vic)

    • S 109 only applies where, apart from its operation, both the CTH and State laws would otherwise be valid

      • If either is invalid ab initio due to a lack of power, questions under the section do not arise

      • The word “invalid” cannot be interpreted as meaning as the State law becomes ultra vires – if the CTH law were repealed the State law would become operative (hence take “invalid” to mean “inoperative”)

        • This is made clear by the idea that the CTH law “shall prevail” – it has superiority and takes effect to the exclusion of the inconsistent state law

The tests of inconsistency

  • The CB writers draw attention to three tests of inconsistency. Inconsistency is present

  1. If it is impossible to obey both – one law requires you to do X and the other one says you must not

    1. R v Brisbane Licensing Court; Ex p Daniell – State referendum of liquor trading hours fixed by State law for the same day as a federal Senate election. The CTH law provided a State referendum could not be held on the same day

  2. If one law purports to confer a legal right/privilege/entitlement and the other purports to take it away or diminish it

    1. Colvin v Bradley Brothers Pty Ltd

CTH: Affirmed that women could be employed to work on certain machines

State: Made it an offence to do so

  1. This is more complex since you have to work out the effect of both laws. Completely reduced it also amounts to a logical contradiction

  1. If the CTH law evinces an intention to ‘cover the field’ and a State law operates in that field (even if there is no direct contradiction). The CTH law has to purport to be “all there is”. It involves asking two questions of which both answers must be in the positive:

    1. Is the CTH law intended to be the exclusive and only law on topic

      1. In answering this the court will consider things like whether for the law to achieve its purpose it is necessary that it is a complete statement of the law

    2. Does the State law operate in the same field

      1. This is hard and requires an assessment of the scope and operation of both laws.

  • The CB writers recount the origin of the first test as being propounded by Isaacs J and suggested by Starke J as counsel in the earlier case of Whybrow

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

Facts:

State Law: Prescribed ordinary working hours of 44 hours a week (with overtime thereafter)

Federal Law: Fixed ordinary hours of duty at 48 hours.

John Cowburn relied on the State Act and worked 44 hours. His employer, relying on the CTH Act deducted an amount from his wages. It was possible to comply with both laws by adopting a 44 hour week but the rights of the employer under the federal award were denied by the State and the rights of the worker were denied by the Federal.

Isaacs J noted the problem if State law were to prevail – it would put the industries of Australia and the rights of employers/employees under a great state of uncertainty and confusion, constant inequality dictated by warring sectional policy and disrupt inter-State trade.

  • His honour further noted that both laws could be obeyed – just like if a crime could be punished by 20 lashes by State and 25 by federal, both could be obeyed by giving 45 lashes

  • His honour propounds a test that may not be useful in all cases but if satisfied would denote inconsistency:

“If…a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field”

  • If this test is satisfied, inconsistency is established by the mere existence of the two sets of provisions

  • Also, if the field is partly open – it becomes necessary to inquire further and contrast particular provisions (e.g. looking at if one provisions makes something lawful and the other unlawful etc.)

Ex parte McLean (1930) 43 CLR 472

Facts: The ‘cover the field test’ became authoritative in this case when Dixon J adopted it in this case.

Cth Act: - Conciliation and Arbitration Act - a person in breach of an award liable to a penalty not exceeding that which was fixed by the CCA or CCom

NSW Act: Masters and Servants Act any person absenting themselves from a contract of service was liable to a penalty not exceeding 10

Firth, grazier, alleged that McLean, shearer, had neglected to fulfil his contract through incompetence. McLean argued that because both he and Firth were bound by a award made by the CTH Act, the State Act was invalid by s 109.

Held: Inconsistency since the same acts were made subject of slightly different penal sanctions

Dixon J:

  • It is a given that if CTH and State legislate on the same subject, providing the rule of conduct, they make inconsistent laws even if the rule of conduct is identical which each prescribes

    • The reason is that by prescribing the rule the Fed statute shows an intention to cover the same subject matter and provide what the law is.

    • If the Federal law is intended to be supplementary then no inconsistency would arise

    • The inconsistency is not in the mere existence of the law (note divergence to Clyde) which are susceptible of both being obeyed – it depends on the intention of the paramount legislature to express its enactment exhaustively as what should be governing the conduct at which it is directed

  • Dao v Australian Postal Commission...

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