The Resolution of Inconsistent State and Territory Legislation

DOI10.22145/flr.38.3.6
AuthorSir Anthony Mason,Geoffrey Lindell
Publication Date01 September 2010
SubjectArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION THE RESOLUTION OF INCONSISTENT STATE AND
TERRITORY LEGISLATION
Geoffrey Lindell* and Sir Anthony Mason**
I
INTRODUCTION
It is a great pleasure to contribute to a festschrift devoted to celebrating the 80th
anniversary of our friend and colleague, Emeritus Professor Leslie Zines. His
contribution to the study of Australian constitutional law is too well known to require
any reinforcement from us. It spans a period of five decades. His principal book The
High Court and the Constitution1 has been and continues to be at the forefront of
constitutional scholarship since it was first published. That book and his other writings
represent the distilled essence of much of his valuable and incisive understanding of
the way the High Court interprets and should interpret, the Constitution — something
which has held a life-long fascination for him. In his publications as in his many years
of teaching, he displays not only a mastery of the technical and analytical aspects of
public law, but a social and functional awareness that goes well beyond deriving the
meaning and application of many provisions of the Constitution by the mere
contemplation of the language used or by the canons of construction. Overall he was
and continues to be a teacher in the widest sense of that term. He has had the good
fortune to see the High Court accept many of his ideas as well as the more open kind
of reasoning which he advocated in successive editions of his book — even if, in the
last edition, he has felt less satisfied with the mode of reasoning adopted by the
modern Court involving the use of legalistic techniques with less reliance on values
and policy considerations.
As problems of federalism have always been at the centre of Zines' scholarly
interests, we have chosen to discuss an important aspect of the subject which has
become even more important since the High Court recognised that State legislation is
capable of operating beyond the territorial limits of the enacting State. That aspect is
how conflicts are resolved between overlapping State and Territory civil and criminal
legislation which is capable of operating beyond the territorial limits of the enacting
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*
Professorial Law Fellow, Law, The University of Melbourne and Adjunct Law Professor,
The University of Adelaide.
** Sir Anthony Mason was a Justice (1972–87) and Chief Justice (1987–95) of the High Court of
Australia and Commonwealth Solicitor-General (1964–69) and currently a member of the
Hong Kong Court of Final Appeal.
1
(5th ed, 2008). The earlier editions were published in 1981, 1987, 1992 and 1997.

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Federal Law Review
Volume 38
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State or Territory. Our aim is to identify the principles which govern, or should
govern, the resolution of such conflicts.
As will appear, the governing principles which we favour are as follows:
(1) a State (or Territory, if authorised by the Australian Parliament) can, subject to
some limitations, legislate with extraterritorial effect in another State (or
Territory); primacy will be accorded, in a case of direct or indirect inconsistency,
to the law of the State (or Territory) legislature which has competence to
legislate in the geographical area in which the law of the former State (or
Territory) purports to operate (our 'main solution');
(2) the closer connection test suggested in Port MacDonnell Professional Fishermen's
Association Inc v South Australia2 ('closer connection test') applies only where the
same inconsistency arises with respect to legislation which seeks to operate
outside the geographical area of both the jurisdictions mentioned in the first
principle, for example Australian offshore areas; and
(3) principles (1) and (2) only operate in the absence of uniform choice of law rules
prescribed by federal legislation which displaces them.
By way of explanation of our approach, we make several preliminary comments.
First, the question under consideration is to be distinguished from familiar choice of
law problems where the courts are called upon to make a choice between the
competing laws of different jurisdictions as the law to be applied to the facts of the
case. In choice of law cases, the choice is made by identifying the law of the
appropriate jurisdiction as, for example, the lex loci delicti.
Here the question is different. It is a matter of resolving an issue of inconsistency
between two statutes, each of which is validly enacted. In order to resolve this issue it
is necessary to formulate a test by reference to which one statute can be said to prevail
over the other with the consequence that its application to the facts of the case will
govern the outcome of the dispute. Although the process of resolving such an
inconsistency may bear a superficial resemblance to resolving a choice of law problem,
in one case (the present case) we are concerned with an actual inconsistency, in the
other (choice of law), we are concerned with apparent inconsistency only.3
The second comment to be made is that it is now accepted that 'ideally' the rules
governing the resolution of disputes should provide certainty and uniformity of
outcome no matter where in Australia a matter is litigated, and whether it is litigated
in federal or non-federal jurisdiction.4 In other words, the rules should substantially
inhibit, even if they cannot eliminate altogether, 'forum shopping'.
Our main solution, namely, that primacy be accorded to the law of the legislature
which has competence to legislate in the relevant geographical area of operation, will,
if adopted, substantially reduce without eliminating altogether forum-shopping, as
will the closer connection test which we propose. In proposing the main solution, we
concluded that it has stronger claims to apply in the case of the conflicts to which it is
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2
(1989) 168 CLR 340, 374 ('Port MacDonnell') even though the Court uses the term 'nexus'.
3 See State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189
CLR 253, 285–6 and n 126 (McHugh and Gummow JJ) ('State Authorities') where the
distinction was drawn between conflict in the constitutional sense and in the sense known
in conflict of laws.
4 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 528 [44] ('Pfeiffer').


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Resolution of Inconsistent State and Territory Legislation
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directed than the closer connection test which could be applied to those conflicts as
well as conflicts in the offshore areas. Although the closer connection test, if so
adopted, would also substantially reduce forum shopping, it is a less precise test and
more difficult to apply.
Our next comment is that we do not see s 118 of the Constitution as providing a
constitutional answer to the problem which we are addressing. Section 118 provides:
Full faith and credit shall be given, throughout the Commonwealth to the laws, the
public Acts and records, and the judicial proceedings of every State.
Later, in Part IX of this essay, we discuss the interpretation of this section.
Our final preliminary comment relates to inconsistency. We use the term with
reference to the sense in which it is understood in s 109 of the Australian Constitution. In
this context, inconsistency in its full sense consists of direct and indirect inconsistency.
Direct inconsistency arises where it is not possible to obey both laws or where one law
confers a right, power, privilege or immunity and it is taken away by the other law.
Indirect inconsistency (often referred to as 'covering the field' inconsistency) arises
where a competent legislature evinces expressly or impliedly its intention to cover the
whole field to which its enactment is directed to the exclusion of any other law.5 As
will appear, we consider that inconsistency in its full sense should be applied in the
resolution of inconsistency between inconsistent State and Territory legislation.
II
THE CONSTITUTIONAL FRAMEWORK AND RELATIONSHIP
WITH CHOICE OF LAW PRINCIPLES
As McHugh and Gummow JJ pointed out in State Authorities,6 the Australian
Constitution does not contain an express paramountcy provision similar to s 109 that is
capable of applying to the resolution of these conflicts. The Constitution does, however,
contain the full faith and credit clause in s 118 which is directed to the recognition of
State, but not Territory, laws.
In the same case7 McHugh and Gummow JJ also quoted with approval the
following remarks of Sir Owen Dixon speaking extra-judicially in 1943:
The colonies were and the States are distinct jurisdictions and the enactments of their
legislatures are confined in their territorial operation because a State is a fragment of the
whole. In other States the recognition of its statutes depends upon the general common
law principles governing the extra-territorial recognition and enforcement of rights, as
affected by the full faith and credit clause.8 (emphasis added)
They went on to say that the subsequent recognition of the full scope of the power
of States to enact extraterritorial legislation served...

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