The Nature of Inconsistency under Section 109 of the Constitution
| Author | Gary A. Rumble |
| DOI | 10.1177/0067205X8001100103 |
| Published date | 01 March 1980 |
| Date | 01 March 1980 |
| Subject Matter | Article |
THE
NATURE
OF
INCONSISTENCY UNDER
SECTION 109
OF
THE
CONSTITUTION
By
GARY
A.
RUMBLE
*
In arecent article in this Review Mr Murray-Jones considered
the state
of
the law
of
inconsistency. Mr Rumble takes issue with
some
0/
Mr Murray-Jones' propositions and, in particular, with his
interpretation
of
some
of
the leading High Court judgments.
Some
of
the most troubling statements about inconsistency that
have emanated from the High Court have been related to the
problem
of
persons who commit both Commonwealth and State
offences. This article considers how the provisions
of
the Crimes
Act, the
Acts
Interpretation
Act,
the Judiciary
Act
and the Com-
monwealth Prisoners
Act
interact in such circumstances.
The article also offers an analysis
of
the nature
of
inconsistency.
The basic proposition
of
the analysis is that, no matter how many
different guidelines are developed to indicate the presence
of
inconsistency, ultimately there is only one category
of
inconsistency.
S-ection
109 of the Constitution provides:
When alaw of the State is inconsistent with alaw of the Common-
wealth, the latter shall prevail, and the former shall, to the extent
of the inconsistency, be invalid.
This section is the cutting edge of Commonwealth supremacy under the
Constitution.
It
is unfortunate that such an important section has yet to receive
any co-ordinated thorough-going analysis from the High Court.
In
a
I'ecent number of this Review, Allan Murray-Jones took the High Court
to task for this failure and himself attempted to define the facets of
s.
109 both by reference to basic principle and logic and by reference
to High Court decisions.! There is, of course, no reason why there
should be complete compatibility between principle and logic and High
Court decisions and the project of definition was aformidable one.
Mr
Murray-Jones considered indeed that some not insignificant
academics had, at least in some respects, failed in the attempt.2
Mr
Murray-Jones offered his discussion as a"starting" statementS and it
*B.A., LL.B. (A.N.U.); Barrister and Solicitor
of
the Supreme Court
of
the
Australian Capital Territory, Solicitor
of
the Supreme
Court
of
New South Wales;
Lecturer, Faculty
of
Law, Australian National University. The author wishes to
thank Professor L. R. Zines and
Dr
D. P. O'Connor, both
of
the Australian National
University Law School, for their advice in the preparation
of
this article. The
author,
of
course, takes full responsibility for any errors.
1"The Tests for Inconsistency under Section 109
of
the Constitution" (1979)
10 F.L. Rev. 25.
lId.
30.
ald.
25.
40
1980] Nature
0/
Inconsistency under Section 109
41
is the purpose of this article to comment on some aspects of his
statement and to offer adifferent approach to some of the important
aspects of
s.
109.
As ageneral comment, Iwould draw attention to the heading of
Mr Murray-Jones' article, "TheTests for Inconsistency under Section 109
of the Constitution". There is adistinction between the abstract
definition of what "inconsistency" means in
s.
109, and the practical
guidelines established by the High Court to ascertain whether the inter-
action of any particular Commonwealth and State laws comes within the
abstract definition.
This distinction
is
particularly relevant to the category of inconsistency
cf
"cover-the-field" on which Mr Murray-Jones concentrated.
It
is
submitted that Mr Murray-Jones overlooked that distinction in the
following aspect of his discussion. Reference was made4to the classic
formula of the cover the field doctrine of inconsistency from Isaacs J.,
as he then was, in Clyde Engineering Co.
Ltd
v.
Cowburn:6
Was the second Act on its true construction intended to cover the
whole ground and, therefore, to supersede the first? . . . If . . . a
competent legislature expressly or impliedly evinces an intention to
cover the whole field, that is aconclusive test of inconsistency
where another legislature assumes to enter to any extent upon the
same field.
Mr Murray-Jones went on to
refefG
to what he called asecond test of
winconsistency suggested by Dixon J., as he then was, in ex parte McLean?
and in the Shipwrecks case, Victoria
v.
The Commonwealth.8This
second test was said to be represented by the statement by Dixon J. that
it
is
relevant to ask whether the State law would "alter, impair
or
detract
from the operation of alaw of the Commonwealth Parliament
...
".9
It
seems to this writer that the true relationship of these statements
from Isaacs J. and Dixon J.
is
as
follows. Isaacs J. was giving (partial)
definition to the word "inconsistency" for the purposes of s. 109. A
situation where the Commonwealth covers, and aState attempts to enter,
afield constitutes inconsistency for the purposes of
s.
109. As Isaacs J.
said, whether or not such inconsistency exists depends on construing the
Commonwealth Act to see whether it was intended to cover the field.
The purpose of the statement of Dixon J. was not to give adifferent
meaning to the word "inconsistency" nor to extend the categories of
meaning encompassed by that word in
s.
109. The purpose of Dixon J.
was, rather, to indicate afactor relevant to the question of construction
arising under the Isaacs cover the field category of inconsistency.
4Id.27.
5(1926) 37 C.L.R. 466, 489.
60
p.cit. 32.
'1
(1930)
43
C.L.R. 472.
8(1937) 58 C.L.R. 618.
DId. 630.
42 Federal
Law
Review
[VOLUME
11
That
is
to say, Dixon J. was merely giving some guidance as to when
the Court would find that the Commonwealth Parliament had, in the
language of Isaacs J., impliedly evinced an intention to cover the field.
In
saying that it is relevant to ask whether the State law would "alter,
impair or detract from the operation of alaw of the Commonwealth
Parliament", Dixon J. was not using the phrase "operation of alaw" in
the narrow sense of the rights, powers and obligations created by alaw.Io
Dixon J. applied the phrase in the Shipwrecks case with the sense of
practical effect sought by the Commonwealth law. Thus, if aState law
interferes with the social goal the Commonwealth is trying to effect,
that is afactor indicating that the Commonwealth intended to exclude
that kind of State law.
(It
should be remembered that in the Shipwrecks
case where Dixon J. suggested this guideline, the Commonwealth had a
strong head of power to rely on.)
11
It
would seem further that Mr Murray-Jones' interpretation of the
judgment of Dixon J., as he then was, in
ex
parte McLean
12
is signifi-
cantly flawed.1s Rather than list every proposition made by Mr Murray-
Jones in that discussion and argue it separately, it will be alittle more
coherent
if
Ioffer
my
own interpretation of the judgment of Dixon J.
and footnote points of disagreement with Mr Murray-Jones.
Dixon J. referred to the doctrine of covering the field
14
citing
Hume
v.
Palmer.
15
His Honour elaborated this doctrine by explaining, as had
Isaacs J. when introducing the doctrine in the passage already set out
supra from Cowburn's case, that such an inconsistency arises from the
~
attempt of State law to enter afield which the Commonwealth had
intended to regulate
exclusively.16
In
anticipation of his later discussion,
Dixon J. chose to speak of covering the "subject matter" rather than
covering the "field" but there
is
no analytical difference between this
concept and the concept contained in the formulation of Isaacs J.l1
10
Dixon J. used the same formula in Stock Motor Ploughs Limited v. Forsyth
with the narrow sense, (1932) 48 C.L.R. 128, 136-137. When used
in
the narrow
sense, the formula
is
atest for indicating direct inconsistency.
11
S.
51
(i).
12
(1930)
43
C.L.R. 472.
130p.
cit. 30-33.
14
(1930)
43
C.L.R. 472, 483.
15
(1926)
38
C.L.R. 441.
16
(1930)
43
C.L.R. 472, 483. Dixon appeared as counsel in Cowburn's case
itself.
He
argued successfully that there was inconsistency, (1926) 37 C.L.R. 466,
470-471. The seeds of the Isaacs formula can be seen in the report
of
the submis-
sions
of
Owen Dixon K.C. E.g. "[The provisions
of
the Commonwealth Act]
disclose aclear intention that the arbitrator shall arrive
at
aconclusion as
to
what
is
the proper measure
of
rights and duties
on
matters which are the subject
of
dispute, and shall embody his conclusion in
an
award which shall have the force
of law in respect of the parties
....
[The State provisions] are simply amendments
of
the award, and for that reason are inconsistent with the Arbitration Act." Id. 470.
Also, more generally, "There is
an
inconsistency if there
is
aconflict between the
wills of the two Legislatures." Id. 471.
17
Mr
Murray-Jones set out the Dixon version
of
the general theory. So
far
there
is
no
disagreement with
Mr
Murray-Jones' analysis.
Ope
cit. 30-31.
To continue reading
Request your trial