Inconsistency between Commonwealth and Territory Laws
| Date | 01 September 2014 |
| Author | Anne Twomey |
| DOI | 10.22145/flr.42.3.1 |
| Published date | 01 September 2014 |
| Subject Matter | Article |
INCONSISTENCY BETWEEN COMMONWEALTH AND
TERRITORY LAWS
Anne Twomey*
ABSTRACT
The rules concerning the inconsistency of Commonwealth and territory laws have been
little explored and largely neglected. They rose to recent prominence in the challenge
to the validity of the ACT’s same-sex marriage laws. The ACT claimed that even i f the
Commonwealth’s Marriage Act was intended to cover the field, the ACT’s same-sex
marriage law could still operate concurrently with it, because of the different
application of inconsistency rules in the ACT. This article considers how inconsistency
rules operate in the different territories, what was intended by the ACT inconsistency
provision, how the High Court determined the issue, and whether a better explanation
can be given for the outcome.
I INTRODUCTION
The recent challenge to the validity of the Australian Capital Territory’s Marriage
Equality (Same Sex) Act 2013 (ACT) raised the question of what rule applies in relation
to inconsistency between Commonwealth and territory laws. The ACT Governme nt
claimed that the inconsistency rule that a pplied to its laws, as set out in s 28 of the
Australian Capital Territ ory (Self-Government) Act 1988 (C th), was narrower than the
constitutional provision th at applies to inconsistenc y between Commonwealth a nd
State laws. Section 28 provides that a provision of a n ACT law has no effect t o the
extent that it is inconsis tent with a law of the C ommonwealth in force i n the Territory,
‘but such a provision shall be taken to be consistent with such a law to the exte nt that it
is capable of operating concurrently with that law’. The ACT Government contend ed
that even if the Marriage Act 1961 (Cth) was intended to cover the field with respect to
all forms of marriage in Australia, thi s did not have an impact upo n the operative
effect of the Marriage Equality (Same Sex) Ac t 2013 (ACT), which would continue in
operation ‘to the extent that it is capable of operating concurrently with ’ the
Commonwealth law.
In Com monwealth v Australian Capital Territory (2013) 250 CLR 441 (‘Same-Sex
Marriage Case’), the High Court unanimously dismissed this argument. In a relatively
brief discussion, it held that the i nconsistency rule in s 2 8 was in fact a constraint upon
the operation of Territory laws and was ‘not directed to the effect which is to be given
* Professor of Constitutional Law, University of Sydney.
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422 Federal Law Review Volume 42
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to a federal law’.1 This leaves unanswered questions as to the source and nature of the
inconsistency rule in relation to laws of the different territories, what s 28 was intended
to achieve, and how it currently operates.
This paper provides a more detailed consideration of these issues. It addresses the
history of inconsistency be tween territory and Com monwealth laws and the sour ce of
the rule. It considers how legislati on has been used to adjust the ope ration of the rule
in relation to certain types of inconsistency in different territories. It l ooks to the
legislative history of the ACT provision and co nsiders what, if anything, was intended
by it. Finally, it considers how it is to be interpreted today in the light of the High
Court’s judgment in the Same-Sex Marriage Case and whether there is a better way to
analyse its operation.
II TERRITORIES, INCONSISTENCY AND REPUGNANCY
Section 109 of the Commonwealth Constitution only applies to inconsistency between
Commonwealth and State laws. It doe s not apply in relation to territory laws.2
Commonwealth laws app ly in the territories and bin d the courts, judges and people of
the territories, because the territories form ‘part of the Commonwealth’3 for the
purposes of covering claus e 5 of the Constitution. The Commonwealth Parliament also
has a plenary head of power to make laws ‘for the government of any territory
surrendered by any State to and accepted by the Commonwealth’ under s 122 of the
Commonwealth Constitution . Both the Northern Territory4 and the Australian Capital
Territory5 were surrendered to the Commonwealth by S tates, and accepted by the
Commonwealth. In addition, s 122 confers plenary legisla tive power on the
Commonwealth with respe ct to any territory ‘pla ced by the Queen under the authority
of and accepted by the Com monwealth’. Norfolk Island was placed by an Imperia l
Order in Council under t he authority of the Com monwealth in 1914 and accepted by
the Commonwealth. 6
Prior to the attainment of self-government, the rule of repugnancy applied to
conflicts between ordinances made by the Governor-General with respect to the
territories and Commonwealth laws.7 According to this doctrine, where there is a
conflict between the law of a superior leg islature and a subordinate legislativ e body,
then the law of the superio r legislature prevails and the law of the subordinate body i s
invalid for lack of power. The doctrine was most com monly applied in relation to
conflicts between colon ial laws and British law s which applied expressly or by
1 Commonwealth v Australian Capital Territory (2013) 250 CLR 441, 446 [53] (emphasis in
original) (‘Same-Sex Marriage Case’).
2 Northern Territory v GPAO (1999) 196 CLR 553, 580 [53] (Gleeson CJ and Gummow J), 636
[219] (Kirby J).
3 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CL R 248, 274 (Brennan,
Deane and Toohey JJ), 285 (Gaudron J) (‘Capital Duplicators Case’); Kru ger v Commonwealth
(1997) 190 CLR 1, 163 (Gummow J).
4 Northern Territory Surrender Act 1907 (SA); Northern Territory Acceptance Act 1910 (Cth).
5 Seat of Government Surrender Act 1909 (NSW); Seat of Government Acceptance Act 1909 (Cth).
6 Norfolk Island Act 1913 (Cth).
7 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582.
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