LLB203 Constitutional Law Outline

Category Topic No. Topic

Constitutions and Institutions of Government

1.1 Nature and Significance of Constitutional Law

1.2 Overview and History of Australian Constitutions

1.3 The Executive Branch of Government

Cth Legislative Power

2.1 Interpretation and Characterisation

2.2 Constitution of the Parliament

2.3 Trade and Commerce

2.4 Corporations

2.5 External Affairs

2.6 Aliens & Immigration

2.7 Defence & Nationhood

2.8 Race

2.9 Taxation

2.10 Grants to States

2.11 Spending

State Legislative Power 3.1 General Principles

3.2 Extraterritoriality

Express Legislative Limitations (Cth)

4.1 Acquisition of Property on Just Terms

4.2 Prohibition on Discrimination and Preference

4.3 Trial by Jury Guarantee

4.4 Freedom of Religion

Express Legislative Limitations (State)

5.1 Customs and Excise Duties

5.2 Freedom of Interstate Trade and Commerce

5.3 Freedom of Interstate Intercourse

5.4 Discrimination Against Out of State Residents

5.5 Inconsistency with Cth Laws

Implied Legislative Limitations

6.1 Freedom of Political Communication and Association

6.2 Right to Vote

6.3 Separation of Judicial Power

5.5 Express Legislative Limitations (State): Inconsistency with Commonwealth Laws

Express Legislative Limitations (State) This category of notes deals with express provisions in the Commonwealth Constitution that limit the legislative

power of the State Parliaments, including the following:

Prohibition on Customs and Excise Duties (5.1)

Freedom of Interstate Trade and Commerce (5.2)

Freedom of Interstate Intercourse (5.3)

Discrimination against Out of State Residents (5.4)

Inconsistency with Cth Laws (5.5)

This topic (5.5) deals with the issue of conflicting Cth and State laws.

Introduction: Inconsistency with Cth Laws [s 109] OVERVIEW: This topic deals with the resolution of Cth/State law conflicts in s 109: When a law of a State is

inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the

inconsistency, be invalid.

PROCESS: When determining whether a law infringes this section, determine:

1. Is the law dealing with the relevant subject matter?

2. Is the law within the scope of the prohibition?

EFFECT: Section 109 limits the legislative power of the States only.

RULE: An inconsistent State law is only invalid to the extent that it is inconsistent. This means that:

o Severance - the inconsistent part of the State law may be severed from the legislation: Clyde

Engineering v Cowburn.

If severance is illogical, the whole law will be invalid: Wenn v A-G (Vic).

o Temporal Invalidity - the inconsistent part of the State law may become valid if the corresponding

Cth law is repealed: Butler v A-G (Vic).

Clyde Engineering v Cowburn

SEVERANCE – INDUSTRIAL AWARDS

A NSW law entitled workers to a week’s pay after 44 hours but the Cth law entitled workers to a week’s pay

after 48 hours. The HCA held that the laws were inconsistent.

Wenn v A-G (Vic)

IMPOSSIBLE SEVERANCE – WHOLE ACT INVALID – COVERS FIELD – ‘APPLY TO EXCLUSION OF’

A Cth Act provided the following: ‘The provisions of this Division shall apply to the exclusion of any provisions,

providing for preference in any matter relating to the employment of discharged members of the forces, of

any law of a State.’ The HCA held that it was intended to cover the field.

(#1) Subject Matter of the Prohibition APPLICATION OF s 109: Section 109 only applies to valid State laws and valid Cth laws.

Meaning of ‘laws’:

o Does not include:

Common law: Felton v Mulligan.

Administrative decisions/directions of the public service, even where non-compliance may

be an offence under Statute: Airlines of NSW v NSW (No 1).

o Includes:

Acts of Parliament: Engineers case.

Delegated legislation: O’Sullivan v Noarlunga Meat.

Industrial awards: Ex parte McLean.

Airlines of NSW v NSW (No 1)

‘LAWS’ DEFINITION – NOT ADMIN DECISIONS – AVIATION REGULATIONS

The HCA held that administrative directions, including air navigation orders, aeronautical information

publications and notices to pilots are not laws for the purposes of s 109.

Ex parte McLean

‘LAWS’ DEFINITION – INDUSTRIAL AWARDS – SHEEP SHEARERS

A Cth Act covering the sheep shearing industry provided that employers and workers in that industry should

observe the conditions of the Award and of any agreement made under it. A NSW law made it an offence for

a worker who had agreed to work for a master to neglect to fulfil the contract. The HCA held that the Cth Act

was intended to cover the field of sheep shearers’ working conditions and the NSW legislation was therefore

inconsistent.

(#2) Scope of the Prohibition GENERAL RULE: Any State legislation which is inconsistent with Commonwealth law is invalid to the extent of the

inconsistency.

INCONSISTENCY TESTS: Several tests can be applied to detect inconsistency:

1. Where the laws are mutually contradictory (i.e. impossible to obey both laws): there are four sub-

scenarios:

a. The Cth law specifically invalidates certain types of State laws: Mabo v Queensland (No 1); Bayside

City Council v Telstra.

b. The Cth law provides that a person/entity is not subject to the State law: Telstra v Worthing;

Botany Municipal Council v Federal Airports Corporation.

c. One law permits that which the other forbids: R v Brisbane Licencing Court; Ex parte Daniell; Colvin

v Bradley Bros.

d. The Cth law provides for a different penalty/class of crime, etc for the same offence: Hume v

Palmer; R v Loewenthal; Ex parte Blacklock; R v Winnecke; Ex parte Gallagher; McWaters v Day;

Dickson v R.

2. Where one law modifies/removes rights/privileges granted by the other: there are two sub-

scenarios:

a. Where a Cth industrial award is inconsistent with a State provision: Clyde Engineering v Cowburn;

Blackley v Devondale Cream (Vic).

b. Where the Cth law simply prohibits something without a licence and the State law requires a

licence: Commercial Radio Coffs Harbour v Fuller; Love v A-G (NSW).

3. Where a Cth law ‘covers the field’: there is a three-step test (Ex parte McLean; Clyde Engineering v

Cowburn):

i. What is the ‘field’/subject matter which the Cth law is dealing with?

ii. Does the Cth law intend to cover the field? – Intention can be evidenced:

By express declaration: Wenn v A-G (Vic); Botany Municipal Council v FAC.

- It is also possible (although not retrospectively) to expressly declare that it does not

cover the field: R v Credit Tribunal; Ex parte General Motors; University of

Wollongong v Metwally.

By inference from the type of law; or

- E.g crimes on commonwealth places: R v Loewenthal; Ex parte Blacklock

- E.g. listening devices: Miller v Miller.

- E.g. racial discrimination: Viskauskas v Niland.

By inference from the width, multiplicity and detail of the law: Wenn v A-G (Vic).

- Extremely elaborate and detailed legislation evidences an intention to cover the

field: O’Sullivan v Noarlunga Meat.

iii. Is the State law attempting to regulate part of that field?

Probably not where the provisions are not inconsistent with the Cth law and the Cth law

does not mention the relevant topic: Collins v Charles Marshall; TA Robinson & Sons v

Haylor; Ansett Transport Industries v Wardley; Swift v Boyd Parkinson.

Probably not where the laws are dealing with distinct subject matter: Commercial Radio

Coffs Harbour v Fuller; Hospital Benefits case.

NOTE: More than one test can apply to the same pair of legislation.

Ansett Transport Industries v Wardley

WHETHER PART OF SAME FIELD – NOT MENTIONED BY CTH – HIRING v FIRING WORKERS

The HCA held that State provisions for hiring and firing discrimination against women, which were not

inconsistent with Cth legislation, were outside the field covered by the Cth legislation (which was interested

only in procedures to be followed post-dismissal).

Bayside City Council v Telstra

MUTUALLY CONTRADICTORY – CTH EXPRESSLY PRECLUDES – STATE LAW MADE ILLEGAL

A Cth law provided that State laws must not discriminate against telecommunications providers. A state law

made telecommunications providers pay higher council rates than other utilities. The HCA held that the State

law was inconsistent.

Blackley v Devondale Cream

ONE MODIFIES OTHER – INDUSTRIAL AWARDS – MINIMUM WAGE

The defendant was charged with failing to pay a worker the minimum wage pursuant to a State law. The

defendant argued that the State law was inconsistent with the Cth law which provided for a lower minimum

wage.

Botany Municipal Council v Federal Airport Corporation

COVERS FIELD – EXPRESS DECLARATION – ‘IN SPITE OF LAW’

MUTUALLY CONTRADICTORY – NOT SUBJECT TO STATE LAW – ‘IN SPITE OF LAW’

Cth legislation gave immunity from State environmental planning regulations to the Airport Corporation and

its contractors, using the following phrasing: ‘in spite of a law, or a provision of a law, of the State of New

South Wales that relates to environmental assessment’. The HCA held that the State laws were inconsistent

with the Cth law on two grounds: (a) the Cth law stated that the FAC was not subject to the State law, and (b)

the Cth law was intended to cover the field.

Clyde Engineering v Cowburn

ONE MODIFIES OTHER – INDUSTRIAL AWARDS – WORKING WEEK HOURS

A NSW law entitled workers to a week’s pay after 44 hours but the Cth law entitled workers to a week’s pay

after 48 hours. The HCA held that the laws were inconsistent.

Collins v Charles Marshall

WHETHER PART OF SAME FIELD – NOT MENTIONED BY CTH – LONG SERVICE LEAVE

The HCA held that State provisions for long service leave, which were not inconsistent with Cth legislation

(which did not mention the topic), were outside the field covered by the Cth legislation.

Colvin v Brady Bros

MUTUALLY CONTRADITORY – PERMITS/FORBIDS – WOMEN ALLOWED TO WORK ON MACHINERY

State law prohibited employment of women on milling machines. Cth law provided that prescribed employers

may employ women on work in the industries and callings covered by the Act (which covered milling). When

an employer was prosecuted under the State law for employing women on milling machines, the HCA held

that the State law was inconsistent with the Cth law and the prosecution was halted.

Commercial Radio Coffs Harbour v Fuller

ONE MODIFIES OTHER – LICENCE REQUIREMENT – DIFFERING SUBJECT MATTER – RADIO TOWER

WHETHER PART OF SAME FIELD – DIFFERENT SUBJECT MATTER – TOWN PLANNING

A Cth Act authorised the granting of licences for use of a radio transmitter, with licences being granted on

certain location and size conditions. A NSW Act authorised local councils to regulate use of land, including use

of land as radio transmitter bases. The HCA held that the legislation were not inconsistent because they dealt

with distinct subject matter (one about granting radio licences, the other about land zoning).

Dickson v R

MUTUALLY CONTRADICTORY – SAME OFFENCE – STATE LAW BROADER

A State law prohibiting conspiracy to steal was much broader than the corresponding Cth offence which was

much narrower and allowed various ‘areas of liberty’. The HCA held that the State law was inconsistent.

Ex parte McLean

COVERS FIELD – CTH LAW MUST BE OBEYED – SHEEP SHEARERS

A Cth Act covering the sheep shearing industry provided that employers and workers in that industry should

observe the conditions of the Award and of any agreement made under it. A NSW law made it an offence for

a worker who had agreed to work for a master to neglect to fulfil the contract. The HCA held that the Cth Act

was intended to cover the field of sheep shearers’ working conditions and the NSW legislation was therefore

inconsistent.

Hospital Benefits case

WHETHER PART OF SAME FIELD – DIFFERENT SUBJECT MATTER – CONTROLLING v TAXING FUND

Cth provisions imposed controls on hospital funds for prudential purposes and State provisions imposed a levy

on the funds as consideration for providing free hospital treatment for members. The HCA held that the laws

were not in the same field.

Hume v Palmer

MUTUALLY CONTRADITORY – SAME OFFENCE

State laws made a sea traffic offence punishable by a $50 fine. Cth laws made the same offence punishable

by $100 fine. The HCA held that the laws were inconsistent.

Mabo v Queensland (No 1)

MUTUALLY CONTRADITORY – CTH EXPRESSLY PRECLUDES – RACIAL DISCRIMINATION ACT

Queensland law purported to extinguish native title rights on Murray Island. Cth Racial Discrimination Act

provided that laws must not discriminate based on race. The HCA held that the State law discriminated against

the people of Murray Island based on their race (100% aboriginal population) and was therefore inconsistent

with the Cth law.

McWaters v Day

MUTUALLY CONTRADICTORY – SAME OFFENCE – CTH INTENDED TO BE CUMULATIVE - ADF

State legislation provided a $1400 fine for drink driving. Cth legislation provided a 12-month custodial

sentence for defence force personnel caught drink driving on defence land. The defendant was caught drink

driving on defence land and prosecuted under the State law. He argued that only the Cth law applied because

the State law was inconsistent. The HCA held that the Cth law imposed cumulative obligations on ADF

personnel and was not inconsistent.

R v Brisbane Licencing Court; Ex parte Daniell

MUTUALLY CONTRADICTORY – PERMITS/FORBIDS – VOTES ON FEDERAL POLLING DAY

Cth law provided that no other votes must take place on Federal polling days. State law provided that a poll

regarding liquor licensing must occur on a certain day (which transpired to be a Federal polling day). The HCA

held that the State law was invalid.

R v Credit Tribunal; Ex parte General Motors

COVERS FIELD – DECLARATION AGAINST – ‘NOT INTENDED TO LIMIT STATE LAW’

A provision of the Cth Act provided that the law was ‘not intended to exclude or limit the concurrent operation

of any law of a State or Territory’. The HCA held that it was not intended to cover the field.

R v Winnecke; Ex parte Gallagher

MUTUALLY CONTRADICTORY – SAME OFFENCE – ROYAL COMMISSION CASE

The defendant was charged under State legislation for failing to answer a Royal Commission question. The

Royal Commission was conducting two enquiries simultaneously, one under State law and one under Cth law,

each providing a different penalty for failing to answer a question. The question that the defendant failed to

answer was relevant to both enquiries. The HCA held that because the two Acts were dealing with different

subject matter (one with State Royal Commissions and one with Cth Royal Commissions), they were not

inconsistent – the defendant was simply chargeable under either Act.

Swift v Boyd Parkinson

WHETHER PART OF SAME FIELD – NOT MENTIONED BY CTH – EXPORT v IMPORT MEAT

Cth regulations were expressly declared to apply to ‘slaughter for export’. The defendant’s slaughtered poultry

was 95% sold domestically and the HCA held that the State provisions applied to this company.

Telstra v Worthing

MUTUALLY CONTRADITORY – NOT SUBJECT TO STATE LAW – EMPLOYER IMMUNISED BY CTH

State laws provided that employers were liable to compensate workers for injuries. Cth law provided that the

Australian Telecommunications Commission was not subject to the State laws on the topic of personal injury.

The plaintiff was injured whilst working for the ATC, but the HCA held that he could not recover compensation

under the State law because it was inconsistent with the Cth law.

Uni of Wollongong v Metwally

COVERS FIELD – DECLARATION AGAINST – RETROSPECTIVE

The Cth enacted an amendment Act which provided the following: ‘This Act is not intended, and shall be

deemed never to have intended, to exclude or limit the operation of a law of a State or Territory that furthers

the objects of the Convention and is capable of operating concurrently with this Act. The HCA held that the

express declaration was not effective and the Act still covered the field.

Wenn v A-G (Vic)

COVERS FIELD – EXPRESS DECLARATION – ‘TO EXCLUSION OF ANY LAW OF A STATE’

A Cth Act provided the following: ‘The provisions of this Division shall apply to the exclusion of any provisions,

providing for preference in any matter relating to the employment of discharged members of the forces, of

any law of a State.’ The HCA held that it was intended to cover the field.