Lecture 4 Resolution of Conflict Laws

Evaluating Legislation
It is necessary to follow two steps in assessing the validity of State and Commonwealth laws.

Is the legislation within power? A distinction must be drawn here between the
Commonwealth, which relies upon enumerated powers, and the States, which enjoy
residual powers.

Does the legislation violate any prohibitions? It is at this point that any relevant
immunities must be considered.

Characterisation
Evaluating Commonwealth laws involves a process known as characterisation.
The first step is to examine the constitutional head of power that supports the law.
Remember that sometimes there will be more than one relevant head of power.
The next step is to examine the correspondence between the law and the power. This will
involve characterising the subject matter of the law. What is the law about? Is it really a law
with respect to the head of power?
Dominant Characterisation
The High Courts approach to characterisation has changed over time. We saw last week
that the early High Court thought Commonwealth powers should be interpreted cautiously
to protect the reserved powers of the states. This led to the early doctrine of dominant
characterisation.
R v Barger (1908) Barger provides an example of the dominant characterisation approach.
The case concerned a Commonwealth law imposing a special tariff on agricultural
machinery used by factories that did not grant their workers certain minimum conditions.
The legislation was challenged on two grounds:

First, that it was outside the taxation power in s 51(ii) of the Constitution; and

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Second, that it discriminated between the states, which is expressly prohibited in s

51(ii).

A majority of the High Court, comprising Griffith CJ, Barton and O'Connor JJ, struck down the
law on both grounds.

The Commonwealth can use a tax to achieve an end not solely related to taxation.
The legislatures motives are, in this sense, irrelevant.

However, the Constitution reserves certain powers for the states. It must be read as
a whole. The Commonwealth cannot use taxation to interfere with areas of state
power.

The majority judges therefore concluded that the legislation was not properly viewed as a
law with respect to taxation.

The dominant character of the law was not with respect to taxation. It was really a
law with respect to working conditions.

The legislation was therefore not supported by the taxation power in s 51(ii).

Isaacs and Higgins JJ dissented. Issacs Js dissenting judgment was to be particularly

influential in later cases. The grant of power in s 51(ii) is not explicitly made subject to state
powers. The Commonwealth must be able to use its enumerated powers without being
fettered by the states.
There can be no derogations from the grant expressly made. [] It is contrary to reason to
shorten the expressly granted powers by the undefined residuum.

Another case illustrating dominant characterisation is Huddart, Parker & Co v Moorehead

(1909). It examined the corporations power in s 51(xx).
The case concerned wide ranging Commonwealth legislation aimed at monopolies and
restraint of trade agreements. A Commonwealth officer sought to use the Act to question
Huddart, Parker about its activities. The company refused to comply.
Griffith CJ and Barton, OConnor and Higgins JJ all voted to strike down the law. The majority
judges differed widely on the proper interpretation of the corporations power. However,

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they all thought it should be interpreted narrowly, bearing in mind the need to protect the
powers reserved for the states. The power to regulate internal trade and commerce is
reserved for the states. It falls within the ambit of s 107. The corporations power cannot be
used to interfere in that area.
The majority judges therefore held that the legislation was not properly regarded as a law
with respect to corporations. It is true that the law has the effect of regulating corporations.
However, its true or dominant character must be determined. The real purpose of the law is
to regulate trade and commerce. This is an area of state power. The law is therefore invalid.
Issacs J dissented. The words of the corporations power are clear and unlimited. They
cannot be constrained by implication from other parts of the Constitution. Powers granted
by the Imperial Parliament are, by their nature, plenary. They must be given an expansive
construction.
The relevance of Engineers
We saw last week that the Engineers Case changed the High Courts approach to
Commonwealth-State relations. Issacs J went from being a dissenter to writing the majority
judgment.
The rejection of implied limitations on Commonwealth powers in Engineers heralded a new
approach to characterisation. The High Court would no longer ask about the dominant
character of a law. Rather, it would ask whether there is a reasonable view of the law that
places it within the head of power.
Multiple Characterisation
The High Courts post-Engineers approach is known as dual or multiple characterisation. It
accepts that a law can have more than one legitimate subject matter. For example, a law
can be about corporations and intrastate trade. As long as at least one of the laws subjects
is within power, it will be valid. It does not matter if it also affects state jurisdiction.
It is no objection to the validity of a law otherwise within power that it touches or affects a
topic on which the Commonwealth has no power to legislate.

Murphyores v Commonwealth (1976), Mason J

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Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1

Fairfax concerned attempts to use taxation to encourage private investment in federal
government securities. Superannuation funds were exempted from income tax if they
bought government bonds.
The Fairfax group challenged the provision as outside the taxation power. The main
argument was that the law was not properly characterised as being about taxation. Rather,
it was argued to be a law with respect to the investment of superannuation funds.
The High Court unanimously rejected Fairfaxs argument. Federal powers may extend to
laws that also have another purpose. The Court noted that Barger had reached the opposite
conclusion. However, the case was in doubt following Engineers. The minority judgments of
Isaacs and Higgins JJ in Barger were to be preferred.
New South Wales v Commonwealth (Work Choices Case) (2006)
Multiple characterisation has expanded Commonwealth power in a number of areas. The
external affairs power is a good example. We will look at it next week.
The corporations power in s 51(xx) is another example. The issue was considered by the
High Court in the Work Choices Case. The case concerned wide ranging legislation passed by
the Howard government. The main subject was industrial relations, but the Commonwealth
relied on the corporations power.
Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ issued a joint judgment upholding
the laws. They declined to use implications to limit the corporations power. As set out in the
Engineers decision, Commonwealth heads of power must be read with all the generality
that the words admit.
Kirby and Callinan JJ dissented. They held that the power is limited by both the federal
nature of the Constitution and its relationship to the other components of s 51.
Conflict of Laws
A Commonwealth law must be within power in order to be valid. State laws will not be valid
if they concern an exclusive Commonwealth power.

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This still leaves significant potential for valid Commonwealth and state laws to address the
same subject matter. What happens if there is a valid Commonwealth law that appears to
conflict with a valid state law on the same topic?
The basic position on conflicts of laws is yielded by 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.

However, s 109 only applies in cases of inconsistency. How do we decide if two laws are
inconsistent? This can be a complicated question. Various forms of inconsistency have been
recognised in the High Courts jurisprudence.
Conflict of Duties
A Commonwealth law and a state law will clearly be inconsistent if one of them requires an
act and the other prohibits it. See R v Brisbane Licensing Court; Ex parte Daniell (1920). The
Liquor Act 1912 (Qld) required a referendum on trading hours to be held along with the
Senate elections.
However, the Commonwealth Electoral Act forbade this. The Commonwealth law was held
to prevail under s 109.
Conflict of Rights
Suppose one law authorises an act and another law prohibits it. A person could technically
obey both laws by not performing the act. However, there is clearly a tension between
them. The High Court has recognised inconsistency between laws where one law permits an
act that the other prohibits.
However, care must be taken in asking whether the act is really authorised by the first law
or merely not ruled out.
Colvin v Bradley Brothers (1943) concerned a state law prohibiting women workers on
milling machines. A Commonwealth industrial award permitted the same type of work.
Section 109 was applied to override the state law.
Multiple cases have held that a Commonwealth law granting a licence to operate a business
overrides a state law requiring the grant of a separate state licence. See, for example,

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OSullivan v Noarlunga Meat (No 1) (1954). Sometimes, however, a person will have to fulfil
two sets of requirements in relation to the same course of action.
Commercial Radio Coffs Harbour v Fuller (1986) involved a Commonwealth licence to
establish a radio station that required the erection of antennae of a certain height. The
radio station sought to avoid state planning processes in relation to the antennae. The High
Court ruled that both laws apply.
Overlapping Requirements
Suppose one law imposes certain requirements while another law imposes more onerous
requirements. A person could obey both laws by meeting the more onerous requirements.
In general, this type of case will depend on the interpretation of the less onerous law. Is it
just designed to set a minimum standard or is it meant to exhaust the requirements?
Clyde Engineering v Cowburn (1926) involved a clash of Commonwealth and state industrial
awards. The Commonwealth award set a regular working week of 48 hours. The New South
Wales award set a working week of 44 hours. Overtime was payable after that point.
It would have been possible for the employer to comply with both standards by paying
overtime after 44 hours. However, the High Court held the state award was superseded. The
Commonwealth award was not intended as a minimum. Rather, it was meant to standardise
employment arrangements on a national basis.
Different Penalties
Two laws may impose the same restriction but apply different processes or penalties. The
High Court has generally found an inconsistency in such cases. The Commonwealth
approach will prevail.
See Hume v Palmer (1926), where federal and state law applied the same rules to steamship
navigation, but provided for different procedures and penalties.
Operational Inconsistency
Sometimes laws will grant powers to different persons or entities in terms that are not
directly in conflict, but the exercise of the powers may clash in some circumstances.

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Western Australia v Commonwealth (Mining Act Case) (1999) is a good example. The
Mining Act 1978 (WA) authorised mining activities. The Defence Act 1903 (Cth) excluded
people from defence practice areas. There is no direct conflict between the laws, but when
a defence practice is declared in a mining area an operational conflict will arise. The federal
law will prevail in such cases.
The recent case of Momcilovic v The Queen (2011) raised different maximum penalties for
drug trafficking under state and federal law. The majority treated this as a clash of powers.
There will be no conflict if the state courts exercise their powers in a way consistent with
Commonwealth law. However, if state courts were to impose penalties in excess of the
federal maximum, a conflict would then arise.
Covering the Field
If a Commonwealth law shows an intention to cover the field that is, to comprehensively
regulate a particular topic then any state laws on that topic are overridden. Sometimes,
the federal law may explicitly state the intention to override state laws.
In other cases, the scope of the law will provide evidence of the intention. Clyde Engineering
v Cowburn and Hume v Palmer can be regarded as examples. The covering the field test is
arguably the most important overarching theme in the High Courts cases on inconsistency.
Viskauskas v Niland (1983) concerned the interaction between federal and state racial
discrimination statutes. The laws were similar in their requirements, but imposed different
processes. The High Court ruled that the state law was excluded.
The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and
exclusive.

Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ at 292

The High Court ruling in Viskauskas took the Commonwealth by surprise. An amendment
was therefore passed to the Racial Discrimination Act 1975 (Cth) declaring retrospectively
that it was not intended to cover the field. The High Court ruled in University of Wollongong
v Metwally (1984) that this made no difference to the outcome.

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It is the substance of the law that matters, not the form or the declared intentions of the
legislature. The Commonwealth cannot circumvent s 109 by declaring that it is not covering
the field. However, a prospective declaration of intent may sometimes have relevance in
interpreting the legislation: R v Credit Tribunal (1977).
Consequences of Conflict
The High Court has held that where a state law is affected by s 109, it is not invalid, but is
merely rendered inoperative. This means that the state law will recommence if the
inconsistency is removed. This might happen if the federal law is repealed. The state law is
rendered inoperative and ineffective from the moment the inconsistency arises. This cannot
be retrospectively remedied.
The High Court is likely to sever the inoperative provisions where possible. However, this
depends on how integral the provisions are to the statute. If the provisions cannot be
severed, the whole statute will be inoperative.

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