the nature of inconsistency under section 109 of the

THE NATURE OF INCONSISTENCY UNDERSECTION 109 OF THE CONSTITUTION

By GARY A. RUMBLE*

In a recent article in this Review Mr Murray-Jones consideredthe state of the law of inconsistency. Mr Rumble takes issue withsome 0/ Mr Murray-Jones' propositions and, in particular, with hisinterpretation of some of the leading High Court judgments.

Some of the most troubling statements about inconsistency thathave emanated from the High Court have been related to theproblem of persons who commit both Commonwealth and Stateoffences. This article considers how the provisions of the CrimesAct, the Acts Interpretation Act, the Judiciary Act and the Commonwealth 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 manydifferent guidelines are developed to indicate the presence ofinconsistency, ultimately there is only one category of inconsistency.

S-ection 109 of the Constitution provides:

When a law of the State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extentof the inconsistency, be invalid.

This section is the cutting edge of Commonwealth supremacy under theConstitution.

It is unfortunate that such an important section has yet to receiveany co-ordinated thorough-going analysis from the High Court. In aI'ecent number of this Review, Allan Murray-Jones took the High Courtto task for this failure and himself attempted to define the facets ofs. 109 both by reference to basic principle and logic and by referenceto High Court decisions.! There is, of course, no reason why thereshould be complete compatibility between principle and logic and HighCourt decisions and the project of definition was a formidable one.Mr Murray-Jones considered indeed that some not insignificantacademics 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 theAustralian Capital Territory, Solicitor of the Supreme Court of New South Wales;Lecturer, Faculty of Law, Australian National University. The author wishes tothank Professor L. R. Zines and Dr D. P. O'Connor, both of the Australian NationalUniversity Law School, for their advice in the preparation of this article. Theauthor, 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 hisstatement and to offer a different approach to some of the importantaspects of s. 109.

As a general comment, I would draw attention to the heading ofMr Murray-Jones' article, "The Tests for Inconsistency under Section 109of the Constitution". There is a distinction between the abstractdefinition of what "inconsistency" means in s. 109, and the practicalguidelines established by the High Court to ascertain whether the interaction of any particular Commonwealth and State laws comes within theabstract definition.

This distinction is particularly relevant to the category of inconsistencycf "cover-the-field" on which Mr Murray-Jones concentrated. It issubmitted that Mr Murray-Jones overlooked that distinction in thefollowing aspect of his discussion. Reference was made4 to the classicformula 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 thewhole ground and, therefore, to supersede the first? . . . If . . . acompetent legislature expressly or impliedly evinces an intention tocover the whole field, that is a conclusive test of inconsistencywhere another legislature assumes to enter to any extent upon thesame field.

Mr Murray-Jones went on to refefG to what he called a second test ofw inconsistency suggested by Dixon J., as he then was, in ex parte McLean?

and in the Shipwrecks case, Victoria v. The Commonwealth.8 Thissecond test was said to be represented by the statement by Dixon J. thatit is relevant to ask whether the State law would "alter, impair or detractfrom the operation of a law of the Commonwealth Parliament ...".9

It seems to this writer that the true relationship of these statementsfrom Isaacs J. and Dixon J. is as follows. Isaacs J. was giving (partial)definition to the word "inconsistency" for the purposes of s. 109. Asituation where the Commonwealth covers, and a State attempts to enter,a field constitutes inconsistency for the purposes of s. 109. As Isaacs J.said, whether or not such inconsistency exists depends on construing theCommonwealth Act to see whether it was intended to cover the field.

The purpose of the statement of Dixon J. was not to give a differentmeaning to the word "inconsistency" nor to extend the categories ofmeaning encompassed by that word in s. 109. The purpose of Dixon J.was, rather, to indicate a factor relevant to the question of constructionarising under the Isaacs cover the field category of inconsistency.

4Id.27.5 (1926) 37 C.L.R. 466, 489.60p. 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 whenthe Court would find that the Commonwealth Parliament had, in thelanguage of Isaacs J., impliedly evinced an intention to cover the field. Insaying that it is relevant to ask whether the State law would "alter,impair or detract from the operation of a law of the CommonwealthParliament", Dixon J. was not using the phrase "operation of a law" inthe narrow sense of the rights, powers and obligations created by a law.Io

Dixon J. applied the phrase in the Shipwrecks case with the sense ofpractical effect sought by the Commonwealth law. Thus, if a State lawinterferes with the social goal the Commonwealth is trying to effect,that is a factor indicating that the Commonwealth intended to excludethat kind of State law. (It should be remembered that in the Shipwreckscase where Dixon J. suggested this guideline, the Commonwealth had astrong head of power to rely on.)11

It would seem further that Mr Murray-Jones' interpretation of thejudgment of Dixon J., as he then was, in ex parte McLean12 is significantly flawed.1s Rather than list every proposition made by Mr MurrayJones in that discussion and argue it separately, it will be a little morecoherent if I offer 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 field14 citing Hume v.Palmer.15 His Honour elaborated this doctrine by explaining, as hadIsaacs J. when introducing the doctrine in the passage already set outsupra from Cowburn's case, that such an inconsistency arises from the ~

attempt of State law to enter a field which the Commonwealth hadintended to regulate exclusively.16 In anticipation of his later discussion,Dixon J. chose to speak of covering the "subject matter" rather thancovering the "field" but there is no analytical difference between thisconcept and the concept contained in the formulation of Isaacs J.l1

10 Dixon J. used the same formula in Stock Motor Ploughs Limited v. Forsythwith the narrow sense, (1932) 48 C.L.R. 128, 136-137. When used in the narrowsense, the formula is a test 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 submissions of Owen Dixon K.C. E.g. "[The provisions of the Commonwealth Act]disclose a clear intention that the arbitrator shall arrive at a conclusion as to whatis the proper measure of rights and duties on matters which are the subject ofdispute, and shall embody his conclusion in an award which shall have the forceof law in respect of the parties.... [The State provisions] are simply amendmentsof the award, and for that reason are inconsistent with the Arbitration Act." Id. 470.Also, more generally, "There is an inconsistency if there is a conflict between thewills of the two Legislatures." Id. 471.

17 Mr Murray-Jones set out the Dixon version of the general theory. So far thereis no disagreement with Mr Murray-Jones' analysis. Ope cit. 30-31.

1980] Nature of Inconsistency under Section 109 43

Dixon J. then discussed the way the conciliation and arbitration power(s. 51 (xxxv)) interacts with s. 109. His Honour said that an award is"not 'a law of the Commonwealth' within the meaning of those words insec. 109".18 The discussion of Dixon J. at this stage assumed a knowledgeof the doctrine of Alexander's case.

In Alexander's case,19 Isaacs and Rich JJ. established the theory,which has since stood unchallenged, that s. 51 (xxxv) does not give apower to legislate directly with respect to industrial relations. It onlygives a power to legislate with respect to conciliation and arbitration tosettle industrial disputes. Furthermore, the making of an award does notof itself change the law. An award rather says what the parties' rightsand liabilities should be. An award is the factum upon which lawoperates to change rights and liabilities.2O

Thus, Dixon J. continued, the relevant inconsistency is not thatbetween the award and the State law. Section 109 is only concerned withinconsistency of laws and the inconsistency must arise, if at all, fromthe valid manifestation of an intention in the Commonwealth Conciliation and Arbitration Act to enable the Commonwealth arbitrator "toprescribe completely or exhaustively what upon any subject in disputeshall be [the disputants'] industrial relations ...".21 Dixon J. then wenton to say that Isaacs, Rich and Starke JJ. in Cowburn's caseD foundthat the Parliament had, validly, given such authority.23 (Dixon J. set outin full the steps involved in Cowburn's case in applying the cover thefield doctrine in a case involving s. 51 (xxxv) .24 )

Dixon J. commented that the distinction between the approach ofIsaacs, Rich and Starke JJ. in Cowburn's case (taking account of theaccepted doctrine of Alexander's case) and the (outmoded) approachwhich "gives to sec. 109 a direct application to Federal awards" is nota mere matter of language. The doctrines may give different results.25

Dixon J. explained how different results might arise. If the (outmoded)approach were correct (and Dixon J. put it beyond doubt that heaccepted the contrary approach at the end of his judgment),26 then theoperation of the cover the field doctrine under s. 51 (xxxv) might be as

18 (1930) 43 C.L.R. 472. 484.19 Waterside Workers' Federation of Australia v. I.W. Alexander Ltd (1918) 25

C.L.R.434.20 Id. 462-463. Mr Murray-Jones made no mention of this part of the judgment

of Dixon J. and, in fact, earlier in his article seemed to overlook Alexander's casecompletely when he said "for the purposes of section 109 an Award made by anarbitrator or other tribunal pursuant to an Act of Parliament is a 'law'''. Ope cit. 27.

21 (1930) 43 C.L.R. 472, 484.22 (1926) 37 C.L.R. 466.23 (1930) 43 C.L.R. 472, 484.HId. 484-485. Mr Murray-Jones was still silent.mId. 485. At this point, this article and Mr Murray-Jonest article enter a

phase of complete disagreement. It is this writer's contention that Mr Murray-Jones'discussion on p. 31 from the words "however his Honour held . . ." to the endof the page represents a basic misunderstanding of the judgment of Dixon J.

26Id.487.


far-reaching as it is under other heads of power. Under other heads ofpower:

If a Federal Statute forbids a particular act or omission and meansto state what shall be the law upon that specific matter, any Statelaw which dealt with the same act or omission would becomeinoperative, and it would probably be of no importance whethereach Legislature was directing its attention to the same generaltopic or had dealt with the same act or omission in the process oflegislating upon two entirely different subjects.27

It is this writer's contention that the use by Dixon J. of the word"distinction" shortly before the extracted passage referred not to adistinction between the traditional doctrine of covering the field and anyalternative Dixonian doctrine28 but rather to the differences in theoperation of the cover the field doctrine which would result accordingto the view one took of the conciliation and arbitration power. Dixon J.seemed to be saying, in the passage extracted, that if the Commonwealthhas a full legislative power with respect to a category of acts· and theCommonwealth chooses to prohibit an act within the centre of thatpower, and intends to cover the field of liabilities arising from the doingof that act, then the Commonwealth's indication of its intention to coverthat field would be effective to prevail over any State attempt to addfurther liability for the doing of that act. His Honour indicated that thisconclusion would follow even if the Commonwealth and State wereconcerned with quite different social problems. It should be noted thatthis last comment was directed to the question of the capacity of theCommonwealth to cover the field. It would surely be relevant to thequestion of whether or not the Commonwealth intended to cover a field\vhich would exclude a particular State law to ask whether or not theCommonwealth and State legislatures were concerned with similar socialproblems and nothing that Dixon J. said here indicates otherwise. Inthe passage extracted, Dixon J. presumed an intention to cover the fieldfor the purposes of discussion.

Dixon J. indicated that the logic of that passage was of no directassistance to him30 when dealing with the interaction of s. 109 ands. 51 (XXXV).31 The terms of the grant of power in s. 51 (xxxv) are suchthat for a Commonwealth law under this placitum validly to cover afield, the covering of the field itself must be relevant to the subject matter

271d. 485. Emphasis added. Mr Murray-Jones also set out this passage butattributed to it quite a different meaning. He thought that Dixon J. was proferring itas a new category of inconsistency different from the cover the field doctrine. Ope cit.318. It is difficult to see how that construction can be put on the passage if accountis taken of the italicised words.

28 As Mr Murray-Jones would have it.29 E.g. s. 51 (i) gives power with respect to activities of overseas trade.30 Mr Murray-Jones was under the impression that Dixon J. based his decision

on the passage set out. Ope cit. 31. It seems to this writer that the situation wasquite the contrary.

31 (1930) 43 C.L.R. 472, 485.

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,to

"conciliation and arbitration for the prevention and settlement ofindustrial disputes extending beyond the limits of anyone State". Thus,as Dixon J. pointed out,32 if the employee concerned in ex parte McLeanhad been charged under a State Act with an offence of maliciouslywounding an animal, there would have been serious doubt both as to theCommonwealth's intention to prevent such prosecutions and as to theCommonwealth's power to prevent such prosecutions by a law dependingfor its validity on its relevance to settlement of industrial disputes byarbitration.33

The employee had not, however, been charged under the State Actwith an offence of cruelty to animals or damage to property. He hadbeen charged under the New South Wales Master and Servant Act 1902with an offence of neglecting to fulfil his contract of employment. It wastrue that included in the evidence to support the charge was an allegationthat the employee, a shearer, had injured sheep.34 Nevertheless, theelements of the State offence related to the master/servant relationship.It was within both Commonwealth power and intention to cover thefield of the industrial relations of employer and employee covered by anaward made under the jurisdiction of s. 51 (xxxv) .35

Mr Murray-Jones, later in his article, noted these dicta of Latham C.J.in Colvin v. Bradley Brothers Pty Ltd:

Classification of statutes according to their true nature is, in myopinion, a matter that is irrelevant to any application of s. 109.36

Mr Murray-Jones criticised that statement and concluded "it is submittedthat the cover the field test in its standard form necessarily involvessome classification of the Commonwealth law and then an investigationof whether the State law intrudes into the class of subject matters whichmay be exclusively dealt with".37 It would seem to this writer thatDixon J. in ex parte McLean accepted and applied this submission ofMr Murray-Jones. This writer would, with respect, agree with bothDixon J. and Mr Murray-Jones at this stage. (In fairness to Latham C.J.it might be said that despite the generality of his language he was onlyimmediately concerned with a problem of what we might convenientlycall "direct" inconsistency. It should also be noted at this stage that theword "classification" is capable of bearing anyone of a range ofmeanings) .38

It is, however, important to emphasise that there are two fundamentalaspects of any cover the field question. First, what field does theCommonwealth have power to cover? Obviously any attempt by the

32Id. 485-486.33 Discussed further infra pp. 49-50.S4 (1930) 43 C.L.R. 472, 473.35 Id. 486-487.36 (1943) 68 C.L.R. 151, 159.37 Ope cit. 47.38 Discussed further infra p. 47.


Commonwealth to cover a field beyond power will not invalidate aState law in that field. Section 109 only gives supremacy to validCommonwealth laws.3D Secondly, what field does the Commonwealthintend to cover? The "subject matter" of the State Act can be relevantto either aspect.

Commonwealth Power to cover the field and subject matter

As Dixon J. pointed out in the passage from ex parte McLean set outsupra,4() some powers are such that the Commonwealth has power tocover the "field" of all kinds of regulation of a particular kind of action.Other powers may only be sufficient to cover the "field" of certainparticular kinds of regulation. It is difficult, if not impossible, to formulateany strict rules governing the relationship between the nature of specificheads of power and the width of the corresponding fields that may becovered by the Commonwealth. And the High Court cannot be expectedto commit itself to any such rules. It is possible, however, to suggestsome guidelines.

If a Commonwealth power is a power with respect to certain kindsof actions, then, prima facie, the Commonwealth has power to cover thefield of regulating those actions. Although the "field" that may becovered in this sense is a wide one the limitations must be borne inmind.

The Commonwealth, for example, has power under s. 51 (i) withrespect to activities of overseas trade and can (probably) cover the fieldof regulating activities of overseas trade. If the Commonwealth manifestsan intention to cover that field or subject matter (it matters not whichterm is used) then inconsistency arises if a State law attempts to operateon overseas trade. The State law is inconsistent because it attempts tochange rights and obligations arising from the doing of activities ofoverseas trade. It can be said that the inconsistency arises because theState attempts to enter the field exclusively covered by the Commonwealth. Given these general propositions, it is necessary to be a littlemore specific about the significance of the word "field" and itssynonyms.

The question of the power of the Commonwealth to cover the field ofoverseas trade should be governed by the principle of Herald andWeekly Times Limited v. The Commonwealth,41 recently reaffirmed inthe Fraser Island case.42 This principle is that a law is within Commonwealth power if it operates by reference to a subject matter (or field) ofCommonwealth power even if the law also deals with other subjectnlatters (or fields). There is no need to inquire into the dominant

39 E.g. Airlines [No.2] (1965) 113 C.L.R. 54.40 Supra p. 44.41 (1966) 115 C.L.R. 418.42 Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 C.L.R. 1.

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•

character of a Commonwealth law. The law can have many charactersso long as one "character" is within power.43

It must be demonstrated not only that the Commonwealth exclusionis within power, but also that the State law has attempted to enter thefield denied to it. The problem of characterisation involved here isanalogous to asking whether the State law has offended a prohibition. Itmay well be that it can be said of the State Act in which the inconsistentprovision is contained, or even of the provision itself, that its dominantpurpose or "subject matter" or "field" or "classification" is, say, stimulation of the State economy, a matter outside Commonwealth power. If,however, the particular State provision before the court operates on thecarrying on of an activity of overseas trade then the State law hasentered the "field" of regulating that activity of overseas trade and isthus inconsistent with any Commonwealth intention to regulate thatactivity of overseas trade exclusively. The fact that the State Act overall,or the particular provision before the court, deals with other subjectmatters and moves in other fields as well does not deprive the State Actof its character relevant to the question of the Commonwealth's powerto exclude the State provision.

Although the approach taken by Dixon C.J. to the question ofcharacterising laws for the purpose of finding whether a law has offendedthe prohibition implied by s. 92 has been abandoned by the High Court;"it suggests the techniques to be applied under s. 109. Although thetechnique of emphasising the form of the law and asking whether or notit operates directly on (in a narrow sense) interstate trade may beinapt when dealing with a section such as s. 92 which contains adeclaration of broad social policy, it is submitted that that techniqueis suited to testing State laws said to be inconsistent with a Commonwealth law depending on s. 51 (i) (or other heads of power with respectto activities).

It is submitted that in so far as Commonwealth coverage of a fielddepends on the centre of the s. 51(i) power with respect to the activity ofoverseas trade, the only State laws which will be invalidated by s. 109are laws which operate directly on overseas trade in the sense in whichDixon C.J. used "directly" in (most of) his s. 92 discussions. In Hospital

43 Latham C.l. never accepted this principle. "It is not enough that a law shouldrefer to the subject matter or apply to the subject matter", Banking case (1948)76 C.L.R. 1, 186. According to his Honour, not only did a law have to be withinpower in the way it operated in "creating, changing, regulating or abolishing rights,duties, powers or privileges", it also had to be substantially, ide 187, even if notpredominantly, ide 185, concerned with the subject matter. This alternativeapproach to characterisation/classification may go some way to explain why hisHonour felt compelled in the passage from Colvin v. Bradley Brothers Pty Ltd(1943) 68 C.L.R. 151, 159, that was discussed supra p. 45, to reject the "classification" of the State law as being in any way relevant to questions of inconsistency.

44 In North Eastern Dairy Co. Ltd v. Dairy Industry Authority of New SouthWales (1974) 134 C.L.R. 559 the members of the Court brought the practicaloperation of the law to the forefront of their discussions.


Provident Fund Pty Ltd v. Victoria, Dixon C.J. set out this approach.

If a law takes a fact or an event or a thing itself forming part oftrade commerce or intercourse, or forming an essential attribute ofthat conception, essential in the sense that without it you cannotbring into being that particular example of trade commerce orintercourse among the States, and the law proceeds, by referencethereto or in consequence thereof, to impose a restriction, a burdenor a liability, then that appears to me to be direct or immediate inits operation or application to inter-State trade commerce andintercourse, ... But if the fact or event or thing with reference towhich or in consequence of which the law imposes its restrictionor burden or liability is in itself no part of inter-State trade andcommerce and supplies no element or attribute essential to theconception, then the fact that some secondary effect or consequenceupon trade or commerce is produced is not enough for the purposesof s. 92.45

A similar concept is incorporated in the judgment of Menzies J. inAustralian Coastal Shipping Commission v. O'Reilly:i6 There his Honourwas considering the power of the Commonwealth to secure immunityfrom State taxation for private traders.41 This "immunity" was to arisefrom s. 109 picking up an express Commonwealth statutory declarationof immunity of an interstate trader from all State taxation. Menzies J.doubted that a law depending on s. 51 (i) could exempt traders "fromState tax imposed by a law which does not take anything to do withtrading as the criterion of tax liability".48 It was sufficient on the facts,however, for his Honour to decide that the Commonwealth did havepower to exempt a private trader from State taxes on receipts issued inthe course of its interstate trade.49

There is one more point to be made about the potential confusion inthe use of the word "field" in this context. The Commonwealth can use

45 (1953) 87 C.L.R. 1, 17-18. Also O. Gilpin Lttl v. Commissioner for RoadTransport and Tramways (New South Wales) (1935) 52 C.L.R. 189, 204-206.His Honour occasionally deviated from this doctrine. E.g. in Fish Board v. Paradiso(1956) 95 C.L.R. 443, his Honour joined a joint judgment which looked topractical effects when determining whether a law directly operated on interstatetrade, ide 453. In Mansell v. Beck Dixon C.J. joined with Webb J. in an approachwhich looked to the purpose of a law to find it did not "directly" operate oninterstate trade even though on the formula set out in the text the law was directlyaffecting interstate trade. (1956) 95 C.L.R. 550 especially 566.

46 (1962) 107 C.L.R. 46.47Id. 64. The case was decided by Dixon J., ide 51-57, with the agreement of

Kitto, Taylor and Owen JJ., ide 61, 61 and 72 respectively, on the basis that theCommission, although not technically within the shield of the Crown in right ofthe Commonwealth, was an "agent" of the Commonwealth. Especially ide 54-55per Dixon C.J. Their Honours' essential reasoning was that a power to create acorporation (to act on behalf of the Commonwealth) necessarily carried with itpower to protect that corporation from incurring State tax liability by carrying outits activities, ide 56.

48ld.64.491d.68.

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its power with respect to activities of overseas trade to enter "fields"otherwise probably beyond its reach. Thus the High Court in the FraserIsland case50 held that the Commonwealth may prohibit export ofminerals subject to conditions relating to environmental considerations.Though the Commonwealth, in reliance on s. 51 (i), can thus pursue thepurpose of environmental protection, it has no direct power with respectto that purpose and it obviously cannot cover the field of environmentalprotection. Should a State Parliament pass a law dealing with theenvironment, even if the provisions of that law were such that theintending exporter was unable to satisfy the Commonwealth conditionson export and export ceased, then so long as the State law did notoperate on activities of overseas trade it would probably be beyondCommonwealth power to exclude that State law. (Any such exclusionwould depend on the incidental aspect of s. 51 (i) which is consideredinfra.)51

The discussion hitherto has attempted to analyse how the doctrine ofcovering the field interacts with s. 51 (i), a power with respect to acategory of activities, and the meaning of "field" in that context. Nows. 51 (xxxv) is considered. In certain aspects s. 51 (xxxv) is a power\vith respect to a certain kind of regulation defined by reference toachieving a purpose. The section gives the Commonwealth power withrespect to conciliation and arbitration for the prevention and settlementof industrial disputes extending beyond the limits of anyone State. Themeasure here of the power of the Commonwealth to cover a field is toask what effect is the Commonwealth's coverage calculated to have onthe Commonwealth's arbitral settlement of a dispute. From one viewpointthe field which may be covered is a narrow one. To use the example ofDixon J. in ex parte McLean the Commonwealth does not have powerto cover the field of the act of injuring a sheep.52 It only has power tocover the field of the aspects of injuring a sheep relevant to settlementof an industrial dispute by award. The Commonwealth has no power toregulate the non-industrial aspects of injuring sheep and non-industrialregulation by a State would prima facie be beyond the reach of theCommonwealth's power to exclude.53

It might be possible to argue that State (non-industrial) regulationof injury to a sheep could be excluded by the Commonwealth, if thatState regulation was cau~ing a dispute of the kind that the Commonwealth has power to prevent or was unsettling a dispute which had beensettled by the Commonwealth. On the current doctrines of the HighCourt the scope for such argument is minimal. A sympathy strike byfellow workers opposed to the punishment of the sheep injurer would

50 Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136C.L.R.l.

stInlra p. 51.52 (1930) 43 C.L.R. 472, 485-486. Supra p. 45.53 Ibid.


not constitute an industrial dispute for the purposes of s. 51 (xxxv) ,54

and neither would a dispute as to whether or not a worker should bepunished for the non-industrial aspects of injuring a sheep."

From another viewpoint the field which may be covered is wide. Ifa dispute has been "settled" by an award then the Commonwealth haspower to make its award exclusive in relation "both as to what is grantedand what is refused . ..".56 That is to say, a State law dealing with aspecific activity which the Commonwealth has not regulated at all maybe inconsistent with the exclusive authority given to an award's "settlement" of a dispute.

Incidental power57 is also, in a sense, power with respect to a certainkind of regulation defined by reference to achieving a purpose. Usualstatements of the measure of incidental power say that laws dependingon such a basis must be reasonably necessary to support an expressgrant of power or reasonably calculated to achieve a purpose related tothe centre of a power.58

Consider again s. 5t(i). The Commonwealth, prima facie, has powerto cover the field of regulating the doing of an act of overseas trade assuch an act is within the centre of the power. On the other hand, theCommonwealth has no direct power with respect to intrastate trade.It may, however, be able to regulate some aspects of activities of intrastate trade by virtue of incidental power. Thus a Commonwealth lawcalculated to prevent activities of intrastate trade from physicallyendangering overseas carriage would be within power.59 Although in thatsense the Commonwealth has power to regulate intrastate trade, thepower is limited by the relevance of that control to overseas trade.Thus although the Commonwealth may be able to cover the field of"safety of overseas trade" it has no power to cover the field of intrastate trade. The power to prohibit intrastate carriage unless certainsafety standards are met is a derivative power. Therefore the fact ofCommonwealth power to prohibit unsafe intrastate carriage does notimply any power to give a right to engage in (safe) intrastate carriage.GO

Similarly, although the Commonwealth may be able to cover the field ofhygienic standards of slaughtering for export and thus exercise some

54 Industrial disruption may provide evidence of, but is not itself, an industrialdispute. Caledonian Collieries Cases [No.1] (1930) 42 C.L.R. 527; [No.2] (1930)42 C.L.R. 558.

05 S. 51 (xxxv) only gives power with respect to industrial disputes. The disputemust relate to the master/servant relationship, ex parte Melbourne and MetropolitanTramways Board (1966) 115 C.L.R. 443.

56 Clyde Engineering Co. Ltd v. Cowburn (1927) 37 C.L.R. 466, 491 perIsaacs J.

57 Whether of the kind implied in each express grant of power, or that powergranted in s. 51 (xxxix).

58 E.g. D'Emden v. Pedder (1904) 1 C.L.R. 91, 109-110; Grannall v. MarrickvilleMargarine Pty Ltd (1955) 93 C.L.R. 55, 77 per Dixon C.J., McTiernan, Webb andKitto JJ.

59 Airlines [No.2] (1965) 113 C.L.R. 54.60 [d. especially 128-132 per Taylor J.

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control over the siting of abattoirs, it may not be able to cover the fieldof running abattoirs for export so as to exclude a State town planningIaw.61

In relation to the question raised above of the power of the Commonwealth to exclude a State environmental law hindering the export trade,some of the wider statements of Fullagar J. in O'Sullivan v. NoarlungaMeat Ltd62 would allow the Commonwealth such power. His Honoursaid "By virtue of [so 51 (i)] all matters which may affect beneficially oradversely the export trade of Australia in any commodity produced ormanufactured in Australia must be the legitimate concern of the Commonwealth".63 That statement is subject to the following relevantlimitations which distinguish the example. His Honour was concernedwith the prevention of contamination of food, a matter where the HighCourt is sure to allow Federal Parliament a fairly free hand. Secondly,all the examples given by Fullagar J.64 of matters at the productionstage with which the Commonwealth may be legitimately concernedwere matters relevant to the physical condition of the goods themselvesat the point of export.

I would not wish it to be thought from these examples that theanswers suggested are necessarily clear-cut. The point is to emphasisethe importance to questions of inconsistency of keeping in mind which"field" the Commonwealth has power to cover and the nature of theparticular Commonwealth power involved.

The Commonwealth intention to cover the field and subject matter

In relation to the second fundamental aspect of cover the field inconsistency, the question of the intention of the Parliament to cover thefield, Mr Murray-Jones said:

Analytically, there is no reason why the subject matter of the Statelaw should affect whether the Commonwealth law evinces anintention to cover the field.'65

If Mr Murray-Jones merely meant by that, that the question of whatCommonwealth Parliament intended cannot be found in examining whata State Parliament does, then the statement is unobjectionable. MrMurray-Jones clearly could not mean to convey that the subject matter ofa State law is irrelevant. I have already discussed his rejection of thestatement of Latham C.J. to that effect.'oo

61 Compare O'Sullivan v. Noarlunga Meat Ltd (1955) 92 C.L.R. 565 (HighCourt) with O'Sullivan v. Noarlunga Meat Ltd [1957] A.C. 1, 29; 95 C.L.R. 177,186-187 (Privy Council). ct. Australian Coastal Shipping Commission v. O'Reilly(1962) 107 C.L.R. 46, 62 per Menzies J.

62 (1955) 92 C.L.R. 565.63Id.598.&lIbido65 Ope cit. 46.66 Supra p. 45.


It is worth emphasising positively, however, that "subject matter" isalmost inevitably part or all of the criterion of exclusion. Any Commonwealth Act must be referable to the "field" or "subject matter" of ahead of power. If the Commonwealth intends to exercise its power tocover the full extent of the subject matter or field of its power, then forinconsistency to exist it must be shown that the State law (whatever itsdominant character) has "entered" the covered field or subject matter.6'lWhen the Commonwealth does not intend to exclude to the full extentof its power, then subject matter is still always relevant. Even the lessercoverage must be within a subject matter within a Commonwealth headof power (a matter of power). Furthermore the lesser coverage istypically set up by Parliament manifesting an intention to allow itsregulation to be modified by laws addressed to certain "fields" orhsubject matters". There is, of course, no reason why such "fields"allowed to the States by the Commonwealth should be referable to aCommonwealth head of power. I will return to the question of thelimits on the way in which the Commonwealth may manifest its intentionas to the field it wishes to cover.68

With this basis for discussion it is now proposed to deal with someimportant questions relating to the operation of s. 109.

Similar offences

In ex parte McLean, Dixon J. stated as a general principle that if theCommonwealth prohibits particular conduct then it follows almostautomatically that the Commonwealth must be taken to have intendedto cover the field of that offence and a State law creating an identicaloffence will be inconsistent.69 Or at least, his Honour qualified, inconsistency will arise, if the Commonwealth and State penalties difIer.'1O

Dixon J. did not explain why the conclusion that the Commonwealthmust have intended to cover the field of the offence flows so readily.One might have thought from the guidance his Honour provided in thelater Shipwrecks case71 to ascertaining Commonwealth intention, that itwould assist the Commonwealth policy of preventing the act proscribedif the State also prohibited that behaviour and thus subjected the

6'1 Supra p. 47.68 Infra pp. 59-62.69 (1930) 43 C.L.R. 472, 483 citing Hume v. Palmer (1926) 38 C.L.R. 441.10 (1930) 43 C.L.R. 472, 483. This principle could not be directly applied in ex

parte McLean itself because of the nature of the power involved. Ibid. There was asimilar kind of inconsistency but it depended on finding not only that the elementsof the Commonwealth and State offences were substantially similar (under theState law the offence consisted of failing to perform a contract of employment,under the Commonwealth law the offence consisted of failing to comply with anobligation under an award to perform a contract of employment) with differingpenalties, but also on finding that the State law had entered the field of industrialrelations exclusively covered by the Commonwealth. Id. 485-486.

11 (1937) 58 C.L.R. 618, 630. Discussed supra p. 41.


prospective villain to a double threat. Mr Murray-Jones apparently sawan advantage in such a double threat.72

On the other hand, Dixon J. may have considered that, for the sakeof certainty and to ensure some just uniformity in the treatment ofwrongdoers, the definition of an offence by the Commonwealth shouldbe taken as an indication that the Commonwealth wanted peoplecommitting that offence to be subject to the Commonwealth system ofjustice only. In relation to the specific question of offences arising unders. 51 (xxxv) it might also be relevant to recall that when ex parteMcLean was decided in 1930, in the days before the Boilermakers'case,73 there would have been more direct co-ordination of judicialdecisions as to enforcement of award provisions and punishment ofwrongdoers with the conciliatory and arbitral activities of maintainingindustrial peace.

Dixon J. cited74 Bume v. Palmer76 as authority for the propositionthat a situation of identical offences with different penalties comes underthe doctrine of covering the field. Support can also be found for theproposition in the judgment of Isaacs J. in Cowburn's case. Isaacs J.gave a hypothetical case of identical offences with differing penalties asbeing a situation which had to be within the reach of s. 109. It was fromthat example that Isaacs J. induced the general doctrine of coveringthe field.76

Isaacs J. saw no reason in principle why both punishments could notbe inflicted. Whether or not both punishments were to be inflicteddepended on whether one Act was intended to "supersede" the other.71

Dixon J. made a similar statement in ex parte McLean in relation tosimilar offences.

If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistencywould be exhibited in imposing the same duties or in inflictingdifferent penalties.18

Isaacs and Dixon JJ. both clearly considered a case of similar offences(with different penalties)'79 as being a case where any inconsistency\vould be by virtue of the doctrine of covering the field. Isaacs J. in fact

720p. cit. 49.73 (1956) 94 C.L.R. 254.74 (1930) 43 C.L.R. 472, 483.76 (1926) 38 C.L.R. 441.716 (1926) 37 C.L.R. 466, 489.71 Ibid. Isaacs J. at this stage was hypothesising identical offences (with different

penalties) made by successive Acts of the same Parliament. The point of hisdiscussion was that the resolution of the question of whether both punishmentsshould be inflicted through ascertainment of the intention in the second (andtherefore dominating) Act gave the clue as to how to resolve a situation wherethe Acts creating the identical offences were Acts of the different Parliaments of aState and the (dominant) Commonwealth.

78 (1930) 43 C.L.R. 472, 483.7'9 The significance of difference in penalties is discussed infra_pp. S6 ft.


presented such a situation as being a classic example for an applicationof the doctrine of covering the field. Despite the opinions of Isaacs andDixon JJ. and despite the fact that cases of identical offences (withdifferent penalties) seemed to have been firmly placed in the categoryof covering the field (by the leading judgment of Isaacs I. in Cowburn'scase), Mason J. seems to have different ideas.

The case of R. v. Loewenthal; ex parte Blacklock80 concerned aprosecution relating to the alleged breaking of a door, the property ofTAA. There were Commonwealth and State offences both sufficient intheir terms to cover such an action. The two provisions were in verysimilar terms. Section 29 of the Commonwealth Crimes Act 1914provides:

Any person who wilfully and unlawfully destroys or damages anyproperty, whether real or personal, belonging to the Commonwealthor to any public authority under the Commonwealth, shall be guiltyof an offence. Penalty: Imprisonment for two years.

Section 469 of the Queensland Criminal Code provides:Malicious Injuries in General. Any person who wilfully and unlawfully destroys or damages any property is guilty of an offencewhich, unless otherwise stated, is a misdemeanour, and he is liable,if no other punishment is provided, to imprisonment with hardlabour for two years, or, if the offence is committed by night, toimprisonment with hard labour for three years.

When a prosecution was brought in apparent reliance on s. 469 thedefendant demurred on the basis that the indictment "does not discloseany offence cognizable to this Court . . . this Court has no jurisdictionto try me for this offence".81 The essential argument was that s. 469 wasinconsistent with s. 29 of the Commonwealth Crimes Act and thereforeoverridden by s. 109.82

Barwick C.J., McTiernan and Mason JI. thought that the terms of theindictment were adequate to disclose the Commonwealth offence anyway83

80 (1974) 131 C.L.R. 338.81Id. 343.82 The situation did not actually call for a direct application of s. 109. S. 52

of the Constitution prevents State laws applying to Commonwealth places such asthe airport where the door was allegedly broken. Worthing v. Rowell and MustonFty Limited (1970) 123 C.L.R. 89. Mason l. explained that the limited applicationof State law to Commonwealth places made by s. 4 of the Commonwealth Places(Application of Laws) Act 1970 (Cth) ultimately brings the question back to themeaning of "inconsistency" in s. 109. (1974) 131 C.L.R. 338, 345. Section 4(2)provides:

This section does not (a) extend to the provisions of a law of a State to theextent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its applicationin or in relation to that Commonwealth place otherwise than by reason of theoperation of section 52 of the Constitution in relation to Commonwealthplaces.

s3ld. 340, 340, 344 respectively. Barwick G.l. and Mason J. commented furtherthat even if they were not, the State court had adequate jurisdiction to amend. Id.340, 345 respectively.


so as to take advantage of federal jurisdiction vested in the State Court.For that reason the defendant's application for prohibition directed tothe trial judge to prevent the charge being proceeded with was dismissed."

The approaches to the question of inconsistency varied somewhat.The reasons given by Menzies J.86 justifying his construction of theCommonwealth enactment may well be open to the criticisms made byMr Murray-Jones.86 At least the approach of Menzies J. is compatiblev.ith the general views of Isaacs and Dixon JJ. as to the kind ofinconsistency involved. Although Barwick C.l. and Jacobs J. bothadopted the discussion of Menzies J. relating to inconsistency, they alsoagreed with the discussion of Mason J. on that topic.87 The judgment ofMason J. contains some statements in apparent conflict with the generalviews of Isaacs and Dixon JJ. Mr Murray-Jones set out part of therelevant discussion of Mason J.88

Reluctantly, I must reproduce that passage and some more as it seemsMr Murray-Jones omitted an important part of the discussion. Thesegment which Mr Murray-Jones extracted is italicised.

Although the provisions are substantially identical in describingthe conduct which gives rise to the offence, the penalties prescribeddiffer. A difference in the penalties prescribed for conduct whichis prohibited or penalized by Commonwealth and State laws hasbeen held to give rise to inconsistency between those laws (seeHume v. Palmer . ..; [(1926) 38 C.L.R. 441] Ex parte McLean[(1930) 43 C.L.R. 472] ... ), at least when it appears that theCommonwealth statute by prescribing the rule to be observedevinces an intention to cover the subject matter to the exclusionof any other law. It is not to be supposed that the Commonwealthlaw, when it formulated the relevant rule of conduct in relation toCommonwealth property and that of its public authorities, proceeded on the footing that other and different rules of conductmight be enacted in relation to such property or that the rule ofconduct which it formulated might be subject to a different penalty.To conclude otherwise would be to say that the Commonwealthlaw contemplated the concurrent application of an inconsistentState law, a result which cannot be sustained. Indeed, there is herea direct conflict (in the matter of penalty) between the Commonwealth and the State law; in such a case it is impossible to see howthe existence of inconsistency in the constitutional sense can be

M Jacobs J. dissented on the ground that the indictment could not be treated asa basis for a trial of the Commonwealth offence as it did not, in his opinion, followthe form required by Commonwealth law. Id. 348. Curiously, Menzies J. felt hecould discharge the applications without having to decide whether the indictmentsatisfied Commonwealth requirements. Id. 343.

85 Id. 342-343.86 Ope cit. 49.87 (1974) 131 C.L.R. 338, 340, 347-348 respectively.88 Op. cit. 49.


avoided by an argument which seeks to attribute to the Commonwealth law an intention not to cover the relevant field.3D

This passage raises many fundamental questions.90 The first is thecontention of Mr Murray-Jones that the italicised section of thequotation represents the basis on which Mason J. rested the inconsistencyin that case.9'1 The extra parts of the judgment set out, especially thoseimmediately following the italicised section, reveal that, on the contrary,Mason J. considered the case to be one of "substantially identical"offences rather than "other and different rules". Mason J. found theinconsistency here in the differences in penalty for substantially identicaloffences.

The next important point to note about the extracted passage is thatMason J. emphasised that the inconsistency was constituted by thedifference in penalties. By contrast, Dixon J. in his statement of therelevant principle in ex parte McLean92 concentrated on the offencesbeing identical. His Honour did add the qualification, "at least when thesanctions ... are diverse".9s That qualification seems to have beenadded, however, merely to describe more cautiously what had actuallybeen decided in the authority cited.94 There is no indication that hisHonour saw any reason in principle for thinking that cases of identicaloffences with identical punishments should be treated any differently tocases of identical offences with different penalties. Isaacs J. in Cowburn'scaseDO did happen to give an hypothetical example with differing punishments, but again there is no indication that his Honour considered thatfactor relevant.

It is difficult to see exactly what significance Mason J. saw in thedifference in penalties. How would his Honour deal with, and classify,a case of identical offences and identical penalties? For example, whatif the Commonwealth and State laws both provided for a penalty of twoyears' imprisonment? Why is that problem to be analysed differentlyfrom a case of one law providing for a penalty of two and the other twoand a half years' imprisonment?

It would seem, with respect, that in either case any inconsistencyarising would be traceable to an implied intention of the Commonwealththat in defining an offence and prescribing a punishment it meant itslaw to be the only law operating on the elements of the offence. Primafacie, if the Commonwealth said the punishment for doing acts X and Yis two years' imprisonment, then it meant two years only. Any State lawwhich tried to add to the punishment for the doing of acts X and Y

g,9 (1974) 131 C.L.R. 338, 346-347.90 Infra p. 71.91 Ope cit. 49.92 (1930) 43 C.L.R. 472, 483 supra p. 53.93 Ibid.M Hume v. Palmer (1926) 38 C.L.R. 441.95 (1926) 37 C.L.R. 466, 489.


,,'ould be inconsistent whether its punishment was an "identical", twoyears' imprisonment, or something completely different.

The only way in which the similarity in punishments could make adifference to the framework of the problem is if both the Commonwealthand State prescription of a punishment of two years' imprisonment, (orhanging or 20 lashes) was taken to mean two years' imprisonment (orhanging or 20 lashes) by whomsoever inflicted. A more elaborateimplication would have to be made in the (typical) kind of provisionprescribing a maximum penalty. Such implications into penalty provisionsare most unwieldy and unlikely. It is submitted therefore that a situationof identical offences with identical penalties should be treated as primafacie constituting cover the field inconsistency.

Nevertheless, although it is difficult to see the significance of thedifferences in penalties, Mason J. considered such difference to besignificant. Furthermore, the cases so far have only been concerned withquestions of identical offences with differing penalties and it can beforecast that the occurrence of identical offences with identical penalties,vill be relatively rare. The following discussion, although in its principlesequally applicable to problems of identical offences and identicalpenalties, is therefore centred around questions of identical offences withdiffering penalties.

It is convenient to proceed, out of turn, to discuss now the final aspectof the extracted passage.96 Mason J. there seemed to say that any incon5istency arising from a difference in penalties for similar offences is directinconsistency. This is in "direct conflict", to borrow a phrase, with theviews of Isaacs and Dixon JJ. reviewed supra.

The hypothetical punishments Isaacs J. was considering in Cowburn'scase were punishments of 20 and 25 lashes.9'7 It was noted before9,8 thatIsaacs J. had no doubt that such punishments could be cumulativelyimposed.99 Indeed, there is nothing in the nature of such punishments,vhich prevents them being cumulatively inflicted. It is possible toimagine cases where both punishments could not be inflicted. One lawmight provide that the offender should be executed by firing squad, theother might provide for execution by garrotting. One law might providefor a punishment of life imprisonment in a federal prison. The othermight provide for life imprisonment in a State prison. There was no suchdramatic conflict in infliction of the punishments before Mason J. Thereis no physical impossibility in a person being imprisoned for two yearsto meet the Commonwealth punishment under s. 29 of the Crimes Actand then being imprisoned with hard labour for another two or threeyears to satisfy the State punishment under s. 469 of the Criminal Code.

.. Nor is there any physical impossibility in imprisoning a person for two

96 Supra pp. 55-56.9

1

7 (1926) 37 C.L.R. 466, 489.98 Supra p. 53.99 (1926) 37 C.L.R. 466, 489.

S8 Federal Law Review [VOLUME 11

years to satisfy the Commonwealth and requiring him to perform hardlabour while imprisoned to satisfy the State, and then, if need be, tospend another year imprisoned on hard labour to satisfy the Statecompletely.l

It might be thought grossly unfair to subject an offender to a doublepunishment just because he happened to stray within the reach ofCommonwealth power. Such injustice should not, however, dictate achange in the analysis of the nature of the inconsistency involved. Thetraditional doctrine of covering the field, depending as it does on the"intention" of Parliament, is quite flexible enough to attribute to theCommonwealth Parliament (or, if more convenient, the State Parliament)an intention consistent with justice.2 Nor should it be forgotten that theprinciple of autrefois convict may prevent double punishment foridentical offences.3

In R. v. Credit Tribunal; ex parte General Motors Acceptance Corporation, Australia (G.M.A.C.)" Mason J. referred back to Loewenthal'scase and in particular to his own discussion, extracted supra.5 Mason J.gave as an example of direct inconsistency a situation where it isimpossible to obey both the Commonwealth and State laws.6 It is tobe noted that Mason J. only presented such a situation as being anexample of direct inconsistency. His Honour did not say that thatsituation exhausts the category of direct inconsistency. Mason J. (inG.M.A.C.) assumed that Loewenthal involved direct inconsistency butit is not clear whether or not he meant by this that Loewenthal was acase where it was impossible to obey both laws. Mason J. may havemeant that concurrent operation would be physically impossible if theCommonwealth and State tried to imprison the defendant in Loewenthalin different places at the same time.'1 Even at this point, it is submitted,the doctrine of covering the field is flexible enough, albeit under stress,to resolve such apparent physical impossibility and allow concurrentoperation.8

Dixon J. considered asomewhat similar problem in the Shipwreckscase.' There both the Commonwealth and State Acts gave their respectiveadministrative officers power to impose obligations relating to the

1 Which of these options would in fact satisfy the punishments depends on howthe word "imprisonment" is construed in the respective statutes. Infra pp. 65-66.

2 We have referred to some of the factors relevant to this question when treatedas a question for the covering the field doctrine. Supra pp. 52-53.

3 Infra pp. 66-68."(1977) 137 C.L.R. 545, 563.6 Supra pp. 55-56.6 (1977) 137 C.L.R. 545, 563.'1 On this view, the "inconsistency" would be the same even if the penalties were

"identical" .8 Discussed further infra pp. 64-66.9 Victoria v. Commonwealth (1937) S8 C.L.R. 618. I am at this stage expanding

a point made by Mr Murray-Jones, Ope cit. 481.

...


removal of wrecks.10 Clearly enough if Commonwealth and State officialsboth gave directions to shift a wreck, but the Commonwealth directionwas to shift the wreck north while the State required the wreck to beshifted south, s. 109 would have to come into play. Even if the Stateand Commonwealth officials gave identical directions it might reduceconfusion if the "directee" knew who was in charge. Dixon J. held therethat the Commonwealth did not intend to cover the field of wreckremoval merely by vesting in its Minister the power to require a wreckto be removed.1:1 The coexistence of the State framework did notdetract from the Commonwealth goal of clearing the waterways. Dixon J.indicated, however, that it must be inferred that the Commonwealthintended to cover the field of removal of any wreck in relation to whichthe Commonwealth Minister was "in course of proceeding" under hisstatutory power.12

It might have been possible to apply a similar analysis to questions ofidentical offences (with different punishments). Whether or not anoffender becomes liable to Commonwealth punishment depends obviouslyon there having been a successful prosecution. It might be argued thatthe Commonwealth law creating the offence only intended to cover thefield of the offence on instigation of prosecution of that offence underthe Commonwealth law. (Some contrary arguments are reviewed supra.)13

It would be difficult to imply an intention adequate to solve allproblems of concurrent operation. As Loewenthal itself indicates, wherefederal jurisdiction is vested in a State Court, a State prosecutor, whoalso had capacity to prosecute Commonwealth offences, might inadvertently frame an indictment setting out the elements of a Commonwealthoffence when he intended to prosecute a similar State offence. It would,at the least, be anomalous for the Commonwealth's coverage of the fieldto come into effect on the unwitting act of a State officer. It might alsoconstitute a breach of natural justice to lead the defendant to think thathe was to be subject to the State penalty.14 Mason J. as a formerCommonwealth Solicitor-General may have had these and similardifficulties of administration in mind. Such difficulties could be taken,within a cover the field analysis of identical offences, as strengtheningthe presumption that the Commonwealth Parliament did not intend toallow concurrent operation of State provisions.

Commonwealth declarations of intention not to exclude StateIt would seem to follow from the decision in R. v. Clarkson; ex parte

10 Navigation Act 1912, s. 329 (Cth); Marine Act 1928, s. 13 (Vic.).11 (1937) 58 C.L.R. 618, 631.12 Ibid. Similarly 626 per Latham C.J. and 628 per Starke J. Rich J. agreed with

the judgment of Dixon J., 626. McTiernan J. preferred not to comment on thepossibility of conflicting exercise of power 638-640. Evatt J. came to conclusionssimilar to those of Dixon J., but also discussed inter-governmental immunity, 637.

13 Supra p. 53. Also Acts Interpretation Act 1901, s. 30 (Cth). Infra pp. 68-70.14 Annamunthodo v. Oilfield Workers' Trade Union [1961] A.C. 945.


General Motors-Holden's Pty Ltd, (G.M.R.JIG that the Commonwealthmay be able to name specific State provisions that it does not intend toexclude and thus validly prevent s. 109 rendering those provisionsinvalid. This suggests that the Commonwealth may be able to proceeddirectly to save State laws (revealing indirectly the field it intends tocover) instead of proceeding by indicating the field it intends to cover(thus indirectly excluding some State laws and saving others) .16 Thatdecision presents no difficulties.

Unfortunately the same cannot be said of the statements of Mason J.in Loewenthal and in G.M.A.C. relating to what would seem to be theanalogous question of the capacity of the Commonwealth to save Statelaws by making a general declaration of intention not to exclude theconcurrent operation of State laws. In the lengthy passage extractedsupra1'7 from the judgment of Mason J. in Loewenthal, his Honour saidthat "inconsistency" cannot be avoided by concluding that "the Commonwealth law contemplates the concurrent application of an inconsistentState law ...".18

Immediately after that passage his Honour went on to consider s. 11 ofthe Commonwealth Crimes Act 1914 and s. 30(2) of the CommonwealthActs Interpretation Act 1901. Section 11 of the Commonwealth CrimesAct 1914 provides:

(1) Where the act or omission of a person is an offence againsta law of the Commonwealth and is also an offence againstanother law of the Commonwealth or some other law, theperson may be prosecuted and convicted under either of thoselaws.

(2) Nothing in this Act shall render any person liable to bepunished twice in respect of the same offence.

Section 30(2) of the Acts Interpretation Act 1901 provides:

Where an act or omission constitutes an offence under both-(a)an Act and a State Act; ... and the offender has been punished forthat offence under the State Act . . . he shall not be liable to bepunished for the offence under the Act.

Mason J. gave the standing general declaration in s. 11 a constructionwhich makes it consistent with his proposition that the Commonwealthcannot be taken to have contemplated the concurrent application ofinconsistent State laws. His Honour said that s. 11 only speaks tosituations in which the State law is not inoperative because of direct orcover the field inconsistency. "The section plainly speaks to a situation

15 (1976) 134 C.L.R. 56.16 I say "it would seem to follow" as the case did not involve such express

preservation in a Commonwealth Act. The "express preservation" was containedin a Commonwealth award.

1'7 Supra pp. 55-56.18 (1974) 131 C.L.R. 338, 347.


,.-,

ill which the State law is not inoperative under s. 109, as for examplewhen there is an absence of conflict between the provisions of the twolaws and the Commonwealth law is not intended to be exclusive andexhaustive."19 His Honour also dismissed s. 30(2) as shedding no light'''on the question whether [so 29 of the Crimes Act] was intended to beexclusive and exhaustive".20

It is to be noted that in his statement of the general principle, Mason J.did not expressly confine his apparent denial of power to avoidinconsistency (by manifesting an intention to allow concurrent operation)to situations of direct inconsistency. Furthermore he construed s. 11 asnot speaking to situations of either direct or indirect inconsistency.:l'fevertheless Mason J. treated the inconsistency involved in Loewenthalas being direct inconsistency and the limitation provided by the contextin Loewenthal was expressly confirmed in R. v. Credit Tribunal; Exparte General Motors Acceptance Corporation.21 In this case Mason J.,with a Denningesque gesture, cited his passage in Loewenthal as authorityfor the "settled constitutional interpretation" that a general Commonwealth law cannot displace the operation of s. 109 in cases of directinconsistency.22 His Honour treated it as being equally settled that generaldeclarations of an absence of intention to exclude State laws "will beeffective to avoid 'inconsistency'" which might otherwise arise underthe doctrine of covering the field. With respect, Loewenthal clearlyprovides no authority for the latter proposition. G.M.H. is at bestindirect support and is not referred to anyway. Whether or not thestatements of Mason J. did represent "settled constitutional interpretation", it may be that his Honour effectively settled the matter thereand then. His Honour's judgment was adopted by Gibbs, Stephen andJacobs JJ.23 and received the general agreement of Barwick C.J.24

In G.M.A.C., availing himself of the "settled constitutional interpretation" that the Commonwealth has capacity by a general declaration toprevent covering the field inconsistency, Mason J. held that such wasthe intention (and effective intention) to be gleaned from the generalprovision of the Commonwealth Trade Practices Act 1974, s. 75.25

Section 75 provides:

(1) Except as provided by sub-section (2), this Part is not intendedto exclude or limit the concurrent operation of any law of aState or Territory.

(2) Where an act or omission of a person is both an offenceagainst section 79 and an offence under the law of a State or

19 Ibid.20 Ibid.21 (1977) 137 C.L.R. 545.22Id. 563-564.23Id. 552, 552, 565 respectively.KId. 552.251d.563.


Territory and that person is convicted of either of thoseoffences, he is not liable to be convicted of the other of thoseoffences.

(3) Except as expressly provided by this Part, nothing in this Partshall be taken to limit, restrict or otherwise affect any right orremedy a person would have had if this Part had not beenenacted.

As Mr Murray-Jones pointed out, Mason J. seemed to have undergone "something of a change in position ...".28 It would seem, however,that the change is not as radical as Mr Murray-Jones suggested. Closeexamination reveals that although the tone of the judgment of Mason J.in G.M.A.C. indicated a more beneficent attitude to Commonwealthattempts to preserve State laws, what Mason J. actually did in G.M.A.C.does not conflict with the interpretation he put on s. 11 and s. 30(2) inLoewenthal.

Mason J. was not concerned in G.M.A.C. at this stage of his judgmentwith a question of similar offences with different penalties (the problemin Loewenthal) nor with a case of the Commonwealth specifying a rulefor the doing of an act and the State attempting to erect another anddifferent rule (the interpretation Mr Murray-Jones put on the issue inLoewenthal) .27

The point of the discussion by Mason J. at this stage was to rebutthe argument that the State offence had entered some wide field of akind of regulation such as "consumer protection" which the Commonwealth intended to cover exclusively. It is true that Mason J. set outs. 75 in full, including s. 75 (2) which, with its reference to offences, issimilar to s. 30(2) of the Acts Interpretation Act. It would seem thathis Honour's reason for doing so was not to indicate the efficacy (orotherwise) of that sub-section in avoiding inconsistency, where there aresimilar Commonwealth and State offences. Rather, s. 75(2) was referredto because its presence strengthened the prima facie meaning of s. 75(1).It was to s. 75(1) that Mason J. was addressing his comments.28

Thus, although the judgment of Mason J. in G.M.A.C. is veryimportant for qualifying the apparent width of his statements inLoewenthal apparently denying power to the Commonwealth to avoidinconsistency by declarations, it does not necessarily follow that Mason J.has changed his interpretation of s. 11 of the Commonwealth Crimes Actand s. 30(2) of the Acts Interpretation Act.29

The function of the Commonwealth Crimes Act 1914, s. 11

Section 11 is set out supra.so Mason J. would only allow this section to

26 Ope cit. 40.27 Supra p. 56.28 (1977) 137 C.L.R. 545, 564.• It must be admitted that it would seem on reading his judgment in Loewenthal

that the momentum of his declarations about the inadequacy of Commonwealth


operate when there is no inconsistency between the Commonwealth andState provisions. What situations are there when an act or omission canbe an offence under both Commonwealth and State law without therebeing a direct or cover the field inconsistency?

The distinction which underlay the discussion by Dixon J. of ahypothetical charge of injuring a sheep in ex parte McLean81 is relevantto this question.32 Sir Samuel Griffith when Chief Justice of Queenslandalso referred to the distinction when he spoke of the need to distinguish

between the acts which were the elements of the offence, C\nd theparticular evidence which was adduced to prove the acts.33

According to Mason J., s. 11 does not speak to situations where thereis an inconsistency, whether direct or cover the field, between the lawscreating the offences. Where the offences are identical and the penaltiesdiffer then, whether called "direct" or "cover the field", there isinconsistency. For reasons touched on suprcr4 and discussed more fullyinfra,3S I would submit further that cases of identical offences andidentical penalties constitute strong prima facie cases of cover the fieldinconsistency.

On the other hand, to continue with the injury to sheep example fromex parte McLean, if, as seems likely, the Commonwealth did not intendto cover the field of injuring sheep (and indeed probably would nothave had power to do so), then a provision like s. 11 would speak to asituation where an act of injuring a sheep was the "element of anoffence" under State law, and, at the same time, evidence of a breach ofa Commonwealth obligation to perform a contract of service.

What happens if the example is reversed? The doing of the act ofinjuring the sheep, an offence under a hypothetical State law, wasevidence of the breach of obligation to fulfil a contract as required byCommonwealth law. It did not, however, make sense to say that the"act" of breaching an obligation to fulfil a contract of service was"evidence" of injuring the sheep. Consider on the other hand thepossibility of a Commonwealth law prohibiting the flying of planesengaged in interstate carriage below 1,000 feet, and a State law prohibiting the creation of a public nuisance. Now in this case the flying ofa plane below 1,000 feet, an offence under Commonwealth law, wouldbe evidence of the State offence. Even if the penalties differed, it issubmitted there is no direct inconsistency between such laws. Here, the

power may have carried him through to his conclusions about how to construes.11 and s. 30(2).

30 Supra p. 60.

31 (1930) 43 C.L.R. 472, 485-486.82 Supra p. 45.33 R. v. Hull (No.2) [1902] St.R.Qd. 53, 57-58, Cooper and Real JJ. concurring.

Mr Murray-Jones did not seem to have taken account of this distinction. Ope cit. 48.34 Supra p. 53.35lnjra p. 76.


Commonwealth probably would have power to cover the field of regulation of the act of interstate trade36 and whether or not it had done sowould be, of course, a question of intention.

Section 11 ( 1) makes it plain that the possibility of prosecution undera Commonwealth Act does not exclude the possibility of prosecutionunder the State Act for a quite dissimilar offence even though bothoffences would be evidenced by the same act and even though, it issubmitted, the elements of one offence were "evidence" of the elementsof the other. It would seem indeed that nothing in s. 11 would precludethe offender being convicted and punished for both (dissimilar) offenceseven though both were constituted by the same act. Section 11 (2) isonly negative and, furthermore, only speaks against the possibility ofdouble punishment for the same offence not against double punishmentfor the same act.

Inconsistency in the infliction of punishment

It should be noted that even if the Commonwealth and State Actscreating offences with different elements can, consistently, both operateon one activity of an offender, there may still be inconsistency if andwhen they come to inflict their respective punishments. Consider thefollowing example. The Commonwealth undoubtedly has power to createan offence, the essence of which is the act of damaging a Commonwealthowned telephone. Furthermore the Commonwealth probably has powerto cover the field of liability arising from the act of damaging a Commonwealth owned telephone handset. If someone smashes a Commonwealthtelephone handset over someone else's head, that one act wouldconstitute the Commonwealth offence of damaging a telephone andcould also offend a State statutory offence relating to assault.

Section 11 would speak to this situation. There is no direct inconsistency(even on the analysis of Mason J.) because the elements of the offencesare dissimilar. It is very unlikely that the Commonwealth will be held tohave manifested any intention (to exercise its probable power) to coverany field which would exclude the State offence of assault.

The Commonwealth prosecutor may at this stage exercise his discretion110t to pursue the Commonwealth prosecution (and is likely not toprosecute if the offender has committed a serious State offence such asmurder). If, however, the Commonwealth prosecutor obtained a conviction for the Commonwealth offence and the offender were sentencedto, say, two years' imprisonment, then it would be inconsistent with thelikely implied intention of the Commonwealth Parliament to make thesentencing judge's sentence an exclusive statement of the way in whichthe offender was to be treated during the infliction of the Commonwealthpunishment, for the State to try to execute the offender before he wasreleased from his Commonwealth imprisonment. Once the Common-

88 Such an act is within the centre of s. 51 (i) •


..

wealth punishment had been exacted then nothing would bar the Statefrom inflicting its punishment.,s7 If the Commonwealth had punished theoffender by executing him while the State was waiting to imprison him\vith hard labour then the inability of the State to exact its punishmentafter the Commonwealth has finished with the offender arises, not fromany inconsistency of laws, but from the fact that the offender is dead.

The difficulty of reconciling a sentence of imprisonment under oneauthority and a sentence of execution under another is not a problemwhich is likely to come before the courts very often. Sentences of termsof imprisonment are much more common than sentences of execution.There are Commonwealth and State provisions which resolve some ofthe problems (and create some of their own) when two or moresentences of imprisonment are imposed on one person.

Section 19(2) of the Commonwealth Crimes Act provides

Where a person is convicted of more offences (whether indictableor otherwise) than one before the same Court at the same sittingand is sentenced to more than one term of imprisonment, the Courtmay direct that the sentences shall be concurrent or cumulative.

The reference to offences is, on its face, unqualified. Yet it is surelybeyond Commonwealth power to legislate for sentencing in all situationswhere a person is convicted of more than one offence. The provisionmust be read down. The provision might be saved by implying that it isonly intended to operate when one or more of the offences is an offenceagainst a Commonwealth law. If it can be thus limited, the section wouldseem to be within Commonwealth power. In effect it empowers thesentencing judge to accept (or reject) concurrent service of a Statesentence of imprisonment as pro tanto satisfaction of the Commonwealthsentence of imprisonment. If it was read even more narrowly as beingonly intended to apply to situations of conviction at one sitting for morethan one offence against laws of the Commonwealth, then s. 19(2)would undoubtedly be within Commonwealth power but would, exhypothesi, be irrelevant to the problem of imprisoning someone who hasoffended against both Commonwealth and State laws.

Section 19(1) of the Crimes Act applies when a court is sentencingto imprisonment for a Commonwealth offence a person already servinga term of imprisonment for a State, Territory or other Commonwealthoffence when convicted of the Commonwealth offence. The sectiongives the court power to direct that the second sentence commence atthe expiration of the term already being served. Section 4(5) of theCommonwealth Prisoners Act 1967 provides that notwithstandings. 19(1) of the Crimes Act, in the situations to which s. 19(1) applies,if the sentence being served has a fixed minimum term, the court may

31 Unless the Commonwealth had both power and intention to cover the field ofliability arising from the doing of the act in question. On my hypothesis the Commonwealth does not so intend.


order the second sentence to commence at the expiration of that minimumterm. InR. v. Otto & Jankowski the Full Court of the Victorian SupremeCourt inferred from the fact that these two express powers had beengiven that Parliament intended that if no order were made under eithersub-section when sentencing, the second sentence was to run concurrentlywith the sentence already being served.3s

Section 20 of the Queensland Criminal Code is an example of a Stateprovision apparently wide enough to apply when a Court is imposing a~entence of imprisonment for a State offence on a person who is alreadyserving a term of imprisonment for a Commonwealth offence. Thesection gives an express power to the court passing the second sentenceof imprisonment to order that the sentence commence at the expirationof the term currently being served. In the absence of any such order thesecond sentence commences immediately and, by inference, concurrently,vith the sentence already being served for the Commonwealth offence.

It might have been argued in Loewenthal that these provisionsconstituted an adequate framework for resolving difficulties of inflictingboth Commonwealth and State imprisonments on an offender for substantially similar offences. The minimal report of the argument doesnot indicate that the Court was referred to these provisions. If theCourt did rest the inconsistency in Loewenthal on a notion that it wasimpossible to "obey" both sets of provisions relating to punishment, itmay have considered that the provisions in s. 19 of the CommonwealthCrimes Act, s.4(5) of the Commonwealth Prisoners Act and s.20 ofthe Queensland Criminal Code were insufficient to resolve all conflicts\vhen imposing different punishments. These sections, indeed, only relateto accepting (or not accepting) concurrent imprisonment as satisfactorypunishment. No attention is given in these sections to the problemswhich may arise where one term of imprisonment is on hard labour andthe other is not, nor to the problems of parole. Of course, these problemsare general problems in co-ordination of Commonwealth and Statepunishments, whether related to similar or totally unconnected offences.

Double Jeopardy and "similar" offences

Section 4 of the Commonwealth Crimes Act should be noted at thisstage. That section provides:

The principles of common law with respect to criminal liabilityshall, subject to this Act, apply in relation to offences against thisAct.

In R. v. Gordon; ex parte Attorney-GeneralS9 Williams J. of the Queensland Supreme Court reviewed the common law doctrines of autrefois

38 [1971] V.R. 844, 846-847. Also Kidd v. R. [1972] V.R. 728, 731 where thesame Court requested more guidance from the Commonwealth especially in thematter of reconciling cumulative sentences with parole matters.

89 [1975] Qd.R. 301, 308-324.

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•

convict, autrefois acquit, transit in rem judicatem, issue estoppel and asuggested but dubious doctrine which might be of interest to the sheepinjurer or the telephone smasher that "no one should be liable to bepunished twice for the same act or omission".40

The scope of s. 4 is as yet unexplored. The Commonwealth undoubtedly has power to prohibit the prosecution of Commonwealth offencesand could condition that prohibition on any matter it liked.41 A Commonwealth prosecution after a State prosecution may be inhibited bys. 4 but it will be by the indirect application of the common law doctrinesmentioned supra. It may be that s. 4 would be inadequate to pick upthose common law doctrines because those doctrines relate to pleas tojurisdiction rather than matters of "criminal liability". If, on the otherhand, the section is held to incorporate those doctrines some difficultquestions arise.

Would any of these adopted doctrines be adequate to prevent aCommonwealth prosecution where it turns out that the earlier Stateprosecution, whether resulting in conviction or acquittal, was voidbecause it was based on a State law which was inconsistent with theCommonwealth law on which the Commonwealth now wishes to proceed?In cases of similar ofjences,42 the direct inconsistency (on the analysis ofMason J.) and almost automatic cover the field inconsistency (on theanalysis of Isaacs and Dixon JJ.) brings s. 109 into play to invalidateprosecution under the State law whether after or before Commonwealthprosecution (or indeed even if there never is any Commonwealthprosecution). The humane considerations underlying the doctrines ofautrefois acquit and convict and their relatives should make the invalidityof the earlier proceedings irrelevant. The rule at the moment seemsto be, however, that autrefois acquit (or convict) will only apply if theoffender was subject at the first trial to the possibility of conviction forthe offence being prosecuted at the second trial.4S If the first trial was anullity then it might be said that he was not then subject to the possibilityof any conviction.44

In relation to the question of State prosecution after Commonwealthprosecution, as noted supra, s. 4 can have no application where theoffences are similar because the State offence is invalidated by s. 109.In cases of dissimilar offences then the doctrines of autrefois acquit,

40 Also D.P.P. v. Connelly [1964] A.C. 1254. Generally, Grant, "SuccessiveProsecution by State and Nation: Common Law and British Empire Comparisons"(1956) 4 University of California (Los Angeles) Law Review 7, especially 24-28.For the Canadian and United States position, Friedland, Double Jeopardy (1969)especially 405-428.

41 Communist Party case (1951) 83 C.L.R. 1, 189 per Dixon J. and MurphyoresIncorporated Pty Ltd v. Commonwealth (1976) 136 C.L.R. 1.

42 Supra pp. 52 fI.43 D.P.P. v. Connelly [1964] A.C. 1254.44R. v. Buzzart (1884) 5 L.R. (N.S.W.) 419; 1 W.N. 73; R. v. Lee (1895) 16

L.R. (N.S.W.) 6; 11 W.N. 121; R. v. McLellan (1874) 15 L.R. (N.S.W.) 42; 11W.N. 73. Halsbury (4th ed.) XI, para. 242. Also generally Friedland, Ope cit. 62-75.


autrefois convict, and probably transit in rem judicatem, would in theirnature not have anything to say to the question:\IO Although under someheads of power the Commonwealth undoubtedly would have power tocover the field of liabilities arising from the doing of certain acts, andshould therefore have the lesser power to provide that the liability forthe doing of such acts shall be determined in accordance with doctrinesof the common law such as issue estoppel and the suggested (dubious)doctrine that "no one should be liable to be punished twice for the sameact or omission", it is very unlikely that such an intention would befound in a general provision such as s. 4.46 This question will only beof importance when someone seeks to rely, after a Commonwealthprosecution, on a common law doctrine to prevent a prosecution beingbrought for a State offence in a State which has altered the relevant partof the common law.

The general provisions of SSe 79 and 80 of the Judiciary Act may berelevant to this problem. These sections apply "The laws of each State"(s. 79) and "the common law of England as modified . . . by thestatute law in force in the State ..." (s. 80). These sections only applyto courts exercising federal jurisdiction and therefore have nothing tosay to State prosecution after Commonwealth prosecution. They may,however, bring in the relevant doctrines for Commonwealth prosecutionafter State prosecution.

A significant limitation in these sections is that they only apply inthe absence of relevant Commonwealth legislation. It might be arguedthat s. 4 of the Crimes Act is a Commonwealth law dealing with doublejeopardy and has provided in that respect by incorporating the commonlaw. On this approach SSe 79 and 80 would not incorporate Statestatutory alterations to the common law. Whatever the resolution ofthat particular point, s. 4 only relates to crimes under the Crimes Act,and ss.79 and 80 of the Judiciary Act which apply generally wouldseem capable of bringing in the relevant doctrines as modified or not ineach State for offences under other Commonwealth laws. Both s. 4 ofthe Crimes Act and SSe 79 and 80 of the Judiciary Act would seem to besubject to the more specific provision in s. 30 of the Acts InterpretationAct.

Section 30 Acts Interpretation Act

Mason J. in Loewenthal only referred to s.30(2) because of thenature of the problem before him but it will aid discussion to set thesection out in full.

30(1) Where an act or omission constitutes an offence under two

45 An initial question with "issue estoppel" would be whether for the purposes ofthis doctrine the Crown in right of a State and the Crown in right of the Commonwealth are to be identified so as to be bound by proceedings involving the other.The doctrine only binds "parties" to the earlier action. Friedland, Ope cit. 418-419.

46 Especially as it applies common law doctrines in relation to offences not acts.

..


or more Acts, or both under an Act and at common law, theoffender shall, unless the contrary intention appears, be liableto be prosecuted and punished under either or any of thoseActs or at common law, but shall not be liable to be punishedtwice for the same offence.

(2) Where an act or omission constitutes an offence under both(a) an Act and a State Act; or(b) an Act and an Ordinance of a Territory,and the offender has been punished for that offence under theState Act or the Ordinance, as the case may be, he shall not beliable to be punished for the offence under the Act.

It would seem that s. 30(1) performs a function similar to thatsuggested for s. 11 in the preceding discussion, with the followingqualifications. Whereas s. 11 (2) of the Crimes Act only providesnegatively that "Nothing in this Act shall render any person liable to bepunished twice in respect of the same offence", s. 30(1) of the ActsInterpretation Act directly prohibits the offender being made liable topunishment for the Commonwealth offence after being punished for theState offence. Furthermore, whereas s. 11 deals with overlap of a Commonwealth and any other law, s.30 (1) significantly omits overlap of aCommonwealth Act with a State Act or with an Ordinance of a Territory.

If read out of context s.30(2) might seem to provide that wherean act or omission is evidence of an offence both under a Commonwealthand under a State (or Territory)47 law, then the offender cannot be madelIable for punishment under the Commonwealth Act after being punishedll..1Jder the State Act even if the elements of the Commonwealth and Stateoffences are completely different and even if one is much more seriousthan the other. Even if s. 30(2) were given such a construction, it wouldnot seem to change the common law situation radically if the words "actor omission" are applied with the literalness applied to the same wordsin s. 16 of the Queensland Criminal Code.48

The points noted, however, at which s. 30(1) of the Acts Interpretation Act differs from s. 11 of the Crimes Act suggest an alternativemeaning which could be given to s. 30(2) of the Acts Interpretation Act.Thus s. 30(1) (inter alia) prohibits a proceeding under common law ifthe offender has already been punished for the same offence under aCommonwealth Act. Section 30(1) also prohibits a prosecution undet aCommonwealth Act if the offender has already been punished for thesame offence under another Commonwealth Act or at common law.It is submitted that s. 30(2) intends to prohibit a prosecution under aCommonwealth Act if the offender has already been punished for the

47 The reference to an "Ordinance of a Territory" includes Northern TerritoryActs, Northern Territory (Self-Government) Act 1978:., s. 67.

48 S. 16 providesPerson not to be Twice Punished for Same ODence-A person cannot be twice punished either under the provisions of this Codeor under the provisions of any other law for the same act or omission, except


same offence under a State Act (or a Territory Ordinance). The draftingreason for separating the complementary aspects of s. 30(1) and s. 30(2)into the two separate sub-sections would seem to be that s. 30(2) (unlikethe corresponding part of s. 30(1) in relation to common law offences)makes no attempt to prohibit prosecutions under State Acts (or TerritoryOrdinances) after a Commonwealth punishment.49

Sir Kenneth BaileyM described s. 30 as being merely declaratory ofthe common law doctrine of autrefois convict. The Supreme Court ofQueensland in Kilcullen v. Sammu~1 thought that s.30(2) should atleast be construed in the light of autrefois acquit and convict, even if itcould not be taken to be a full restatement of the common law.52 Thuss. 30(2) (a) only prohibits Commonwealth prosecution if there has beena State conviction and punishment of an offence substantially the sameas the Commonwealth offence.

The difficulty with this approach is that it leaves s. 30(2) (a) withvery little function to perform. On the approach of Mason J., if theCommonwealth and State offences are substantially the same and penaltiesdiffer then the laws are necessarily inconsistent and any State convictionis a nullity. On the approach of Isaacs and Dixon JJ. such laws are, ifnot necessarily almost automatically, inconsistent. There has, as yet, notbeen much judicial guidance on the (rare) case of identical offences,identical penalties but it is submitted that such a situation constitutes astrong prima facie case of cover the field inconsistency.53

Direct or cover the field inconsistency?

Thus far the unequivocal statement of Mason J. in G.M.A.C.M to theeffect that if there is direct inconsistency, a declaration of intention topreserve State laws can have no effect has been noted and accepted forthe purposes of discussion." It has also been noted that his Honourwould allow such a declaration to be taken into account when examiningwhether or not the Commonwealth had revealed an intention to cover

in the case where the act or omission is such that by means thereof he causesthe death of another person, in which case he may be convicted of the offenceof which he is guilty by reason of causing such death, notwithstanding that hehas already been convicted of some other offence constituted by the act oromission.

Discussed in R. v. Gordon; ex parte Attorney-General [1975] Qd.R. 301.

49 Before s.30 was amended in 1937 to its present form there used to be asection, s.25, in the Act which prohibited prosecution of a State or common lawoffence after punishment for the same Commonwealth offence (and vice versa).Discussed in R. v. McNicol [1916] V.L.R. 350, 354 per Madden C.J.

00 Bailey, "Inconsistency with Paramount Law" (1939) 2 Res Judicatae 9, 19.51 [1946] St.R.Qd. 152.Old. ISS per E. A. Douglas J. with Philp and Matthews JJ. in agreement, IS8

and IS9 respectively.53 Infra p. 76.M (1977) 137 C.L.R. 545, 563.51) Supra p. 61.


the. field.56 The clear assumption in these statements is that there is ananalytical difference between direct inconsistency and cover the fieldinconsistency.

Mr Murray-Jones in his article discussed the subculture of academiccompilations of categories of inconsistencies.5'7 He presented thesecategories as being "subsidiary tests" and concluded, with justification,that the general understanding of academics and the judiciary is thatmost of them are specific examples under the major heading "direct"inconsistency, which leaves two categories of inconsistency, "direct" and"cover the field".58 In Miller v. Miller59 the Chief Justice, whose judgment was adopted by Stephen J.60 and Aickin J.,61 emphasised thedichotomy.

The relevant constitutional law is not in doubt and has frequentlybeen stated. It now needs no documentation by reference to thedecided cases. There are two distinct bases for the conclusion ofinconsistency within the meaning of s 109 of the Constitution.There may be what may be called a textual collision between theprovisions of the Australian Act and of the State Act or theAustralian Act may manifest an intention on the part of theParliament that its law on the topic of its Act shall be the law, thatis to say, the exclusive law on that topic both for what it forbidsand what it allows.62

This serves to emphasise the significance of the implication which canbe drawn from the judgment of Mason J. in G.M.A.C. with whichBarwick C.J., Gibbs, Stephen and Jacobs JJ. agreed, that "it now appearsto be agreed that direct inconsistency does not depend on parliamentaryintention".63 It is true that that did seem to be the implication in thejudgment of Mason J. in G.M.A.C. It seemed indeed to be rather morethan an implication in his Honour's earlier judgment in Loewentha[64(which was agreed with by Barwick C.J. and Jacobs J.) and the relevantpassage from which is set out supra.65 Yet how can such an extraordinaryproposition stand? Admittedly it is for the courts to determine themeaning of the word "inconsistency" in s. 109. There must, however, bean inconsistency of "laws". Surely it is for Parliament to decide whatto put in its laws. If by putting in one meaning rather than another, an

G6 (1977) 137 C.L.R. 545, 564.57 Ope cit. 33-40.68ld.40.59 (1978) 22 A.L.R. 119.60 Id. 125.61Id. 127.62 Id. 123. The drawing of this distinction was not necessary to his Honour's

decision. The statement was made to emphasise the width of "inconsistency" andas a prelude to "demonstrating" the existence of inconsistency under both heads.

63 Per Mr Murray-Jones, Ope cit. 40.64 (1974) 131 C.L.R. 338, 346-347.65 Supra pp. 55-56.


inconsistency (between laws) which might otherwise have arisen isavoided, what business is that of the courts?

I would suggest that there is a way of analysing the decisions inLowenthal and G.M.A.C. which would accord more with basic principle.My essential submission is that there is no constitutional or other legaldifference between direct and cover the field inconsistency.66 There aremany different ways in which inconsistency can occur, just as there aremany different ways in which practical impasses (through the conflict ofCommonwealth and State wills) will not constitute inconsistency.

It is submitted that although the suggested distinct "legal" categoriesmay have a function to perform in illustrating the variety of ways inwhich inconsistency can arise, as a matter of ultimate legal analysis theyare all subsumed by the one category of inconsistency. The one test forinconsistency is to ask whether the State has intruded into the regulationof a field/subject matter which the Commonwealth has validly coveredby evincing an intention that its own law shall be the exclusive law inthat field/subject matter. (It matters not analytically whether or not onecalls the one category "direct" or "cover the field" inconsistency. )61

This test demands a concentration on the scope of the various headsof Commonwealth power and a tight careful analysis of the nature ofthe field which can be and has been covered (or left empty) by theCommonwealth, and the field in which the State law operates. Again wecome back to the two key considerations, the power of the Commonwealth and the intention of the Commonwealth.

To illustrate this proposition, consider first the case of Stock MotorPloughs Limited v. Forsyth.68 The High Court in that case had toconsider the compatibility of s. 43 (and related provisions) of theCommonwealth Bills of Exchange Act 1909 which provided in subsection (1) that "The rights and powers of the holder of a bill are asfollows: (a) He may sue on the bill in his own name ..." with SSe

4, 11 and 20 of the New South Wales Moratorium Act 1930 whichprohibited the commencement of proceedings (including proceedings ona bill) for the recovery of any instalment under a hire-purchase agreement, without the leave of a State court.

Forsyth had given promissory notes as collateral security for instalments due under a hire-purchase agreement. When the holder of thenotes proceeded against Forsyth on the notes, he (Forsyth) set up theMoratorium Act as a defence. The holder moved to have that pleastruck out on the basis that the Moratorium Act was inconsistent withthe Commonwealth Act and therefore void.

G6 This is not a new argument. See the delightful discussion of Tammelo in "TheTests of Inconsistency Between Commonwealth and State Laws" (1957) 30A.L.I.496.

67 Ct. Tammelo, ide 498-499.68 (1932) 48 C.L.R. 128.

4111

-.,


Gavan Duffy C.J., Starke, Evatt and McTiernan JJ., with Dixon J.dissenting, held that there was no inconsistency and that therefore theNew South Wales Act effectively barred the action on the notes. Atfirst sight this result may seem a little surprising. The CommonwealthAct apparently gave a right to sue to the holder of a bill and the StateAct prohibited the commencement of any action (including an action ona bill) if related to recovery under a hire-purchase agreement. To usethe idiom, this would appear to be a direct inconsistency.

Starke J. of the majority thought that although the Commonwealthenactment was concerned to declare some of the obligations (and rights)arising from the making of a promissory note, it did not attempt to"prescribe, define, or deal with the time within which they may beexercised, or how and in what manner they may be suspended. . . .Where the Federal power has not acted, the competent legislatures arenecessarily the States ...".69

Evatt J. argued that the Commonwealth did not intend by its Act toexclude State laws directed to the kind of social problem addressed bythe Moratorium Act. There was no intention "to place restrictions uponthe contractual freedom of the two original parties to a promissory note"and no intention to cover the field of regulation of contracts.70

That is to say, their Honours found that despite the unequivocal~ lnnguage of the Commonwealth section vesting a right to sue, the

Commonwealth did not intend its right to be absolute. It intended thatits right could be qualified by certain kinds of State laws (Evatt J.) orwas indeed only intended to be a right to use a convenient form ofprocedure when pursuing rights, the substance and enforcement of whichwere otherwise left to State law (Starke J.). Whether or not one agrees

,. with the particular constructions placed by the majority judges on theCommonwealth right, there is, with respect, no offence to principle intheir analyses.

In the case of Palmdale-A.G.C.!. Ltd v. Workers' CompensationCommission of New South Wales71 (decided after Loewenthal andG.M.A.C.), the High Court pursued a similar analysis. The Courtheld, again through a leading judgment of Mason J.,72 that there was noinconsistency between a State law prohibiting a corporation fromcarrying on the business of workers' compensation insurance without aState licence and a Commonwealth law under which the corporationheld an authority to carryon insurance business.

The Court was influenced by an examination of the different kinds ofconditions which could be imposed on the respective licences.73 Their

69 Id. 135.70Id. 143.71 (1977) 140 C.L.R. 236.72Id. 239-246, Barwick C.J., Stephen, Jacobs and Aickin JJ. concurring, 239,

239, 246 and 246 respectively.73Id. 241-242.


Honours were also assisted by some express legislative disavowals bythe Commonwealth of any intention to cover the field of rights to carryon insurance business or an intention to create an absolute right (despitea strong power in s. 51(xiv)). One quite general section'l4 was treatedas indicating that the grant of the Commonwealth "authority" was notto be taken to indicate anything more than that the Commonwealth hadrelaxed its own prohibition and it was not intended to "overcome a wantof authority to carry on insurance business which arises dehors theCommonwealth Acts".75 The Court obtained much assistance froms. 100 of the Commonwealth legislation, the Insurance Acts 1973.

Section 100 provides

Subject to section 99, it is the intention of the Parliament that noprovision of this Act shall apply to the exclusion of a law of a Stateor Territory in so far as that law has the effect of-

(b) requiring a specified contract of insurance or a contractincluded in a special class of contracts of insurance to bemade with a specified person or a person included in a specifiedclass of persons; ...

The Court held that the State law, the Workers' Compensation Act 1926(N.S.W.) s. 27, came within the terms of the Commonwealthpreservation.'l6

The Court was willing to look to such declarations both to findwhether or not there was cover the field inconsistency and to findwhether there was direct inconsistency.'7'7 Consider the following statementfrom the judgment of Mason J.:

Once the true sphere of operation of Pt III of the CommonwealthActs is identified there can be no direct collision of the kindsuggested by the plaintiff.'l'8

A "field" is two-dimensional while a "sphere" is three-dimensional butthe use of the spatial term tells the tale. It is not possible to decidewhether or not there is direct inconsistency without first consideringwhat field the Commonwealth covered.

The defender of the analytical schism between direct and cover thefield inconsistency will protest at this stage "what about 'classical' directinconsistency?" The clearest example of inconsistency is a situationv.here one law prohibits what the other directs. The schismatics maywell argue that it is unnecessary in such a situation to ask whether theCommonwealth intended to cover any field. On the contrary, considerthe case of G.M.A.C. itself.79 There a State lawSO required a certain

'l4 Insurance Acts 1973, s. 38 (Cth).75 (1977) 140 C.L.R. 236, 241 per Mason J.'76Id. 245 per Mason J.'l'7Ibid.7SIbid.19 (1977) 137 C.L.R. 545.80 Consumer Credit Act 1972-1973, s. 40 (S.A.).


notice to be given while the Commonwealth laWS1 prohibited engagingin misleading conduct. It was argued that the State law was inconsistentvlith the Commonwealth law. One basis for the argument was thatcompliance with the State law by giving the notice required constitutedmisleading conduct, an offence under the Commonwealth Act. Mason J.,with the agreement of Barwick C.J., Gibbs, Stephen and Jacobs JJ.,82rejected this argument at the first point by holding that the State noticerequired was not misleading.83 Mason J. went on, however, to say that inany case the Commonwealth prohibition of "misleading conduct" was notintended to apply to conduct required by another law. "The unexpressedassumption which underlies the prohibition is that the conduct soenjoined is not conduct in which the corporation is required to engageby, or under the compulsion of, some other law enacted in the interestsof consumers."84

With respect, this construction made good sense. The Commonwealth's social goal of consumer protection would be aided by theconcurrent operation of State laws directed to the same end.so Thesignificance of the case to my argument is, however, that the Court actedon the assumption that the Commonwealth might, by impliedly evincingan intention that its apparently absolute prohibition could be qualifiedby State laws, preserve those State laws.

Again the schismatics may protest. There are lots of Commonwealthprohibitions or directions which are absolute. I would first answer thata lot of these Commonwealth provisions only appear to be absolute untilthe circumstances arise necessitating the appropriate implied qualification.

For example, a Commonwealth law may, in reliance on s. 51 (xxix),the external affairs power, prohibit the shooting of visiting heads ofstate. Surely that prohibition would be unqualified? Surely a State lawwhich authorised the shooting of visiting heads of state would be directlyinconsistent without further inquiry? But what of a State law whichauthorised or even required the shooting of any person (includingvisiting heads of state) engaging in armed robbery or dismemberingchildren. Surely it is at least open to argument that the Commonwealthprohibition did not intend to cover a field which would exclude theoperation of that kind of State law.

Consider also a Commonwealth law requiring any person in possessionof secret Commonwealth documents or prohibited imports to buin themhnmediately on receipt of a notice to do so. If, when the notice wasreceived, there was a situation of extreme bush fire danger and a totalfire ban imposed by State law would it not be open to argument that the

81 Trade Practices Act 1974, s. 52 (Cth).82 Murphy J. merely made a general statement that the Commonwealth did not

intend to cover the field, (1977) 137 C.L.R. 545, 565.83 Id. 559-560.84 Id. 561.so Ibid.


direction was not meant to be absolutely binding in those circumstances?In Pirrie v. McFarlane86 a similar question arose. In that case a

tnember of the Royal Australian Air Force was ordered by a superiorofficer to drive a vehicle. The member of the R.A.A.F. was charged withan offence under State law of driving a car without a State driver'slicence. It was argued that the State law was inconsistent with aCommonwealth law requiring the accused to obey lawful commands ofsuperior officers. The Court rejected the argument. The Court87

emphasised that the Commonwealth law only required compliance withlawful commands which was taken to mean commands consistent withordinary civil law relating to the use of highways.88

Furthermore, just because there are many laws for which it is notpossible in advance to foresee a situation where the Commonwealthwould intend to allow a State law concurrent operation does not meanthat inconsistency arises irrespective of Commonwealth intention. Onthe contrary, it can be inferred from the nature of the matter that theCommonwealth impliedly intended a tight coverage of its field. Theinconsistency depends on that Commonwealth intention.

On the other hand, although it may be theoretically possible for theCommonwealth to evince an intention for any of its laws to be qualifiedby certain sorts of State laws, the Parliament cannot expect the courtsto sort out the mess for them with general provisions such as s. 11 (1) ofthe Crimes Act. (The High Court may object indeed, as it has done inmatters of severance, that a point is reached at which the Court isentering the prohibited field of "legislating".89) There are often, especially in the areas of similar offences, significant political decisions to bemade and complex administrative co-ordination to be arranged and thecourts cannot be expected to "imply" these matters. When the Commonwealth defines the elements of an offence, the very strong presumptionmust be, therefore, that the Commonwealth intended to cover the fieldof regulating an offence with those elements and State laws attemptingto create identical offences, whether with the same or different penalties,will be inconsistent.

Thus although disagreeing with some of the implications which maybe drawn from the judgments of Mason J. in Loewenthal and G.M.A.C.as to the powers of the Commonwealth and the meaning of "inconsistency" in s.l09, I would agree that s. 11 of the Commonwealth Crimes

86 (1925) 36 C.L.R. 170.8'7 Knox C.J., Higgins and Starke JJ., Isaacs and Rich JJ. dissenting.88 (1925) 36 C.L.R. 170, 182 per Knox C.J. In so far as the case decided that the

State may bind Commonwealth servants carrying out their functions, it may haveto be reappraised to take account of the statements, made by Fullagar J. with theagreement of Dixon C.J., Webb and Kitto JJ. in Commonwealth v. Bogle (1953)89 C.L.R. 229, 259, to the effect that the States have no power over the Crown inright of the Commonwealth. The case is, nevertheless, useful for the purposes ofmy s. 109 discussion.

89 Pidoto v. Victoria (1943) 68 C.L.R. 87, especially 109-110 per Latham C.l.


Act and s. 30 of the Acts Interpretation Act are rather weak factors inascertaining the Commonwealth's intention in relation to covering thefield of offences. I would, with respect, also submit that the relevantjudgments of Mason J. could be taken as indicating that as a generalguide to questions of construction, sections such as s. 11 of the CrimesAct, s. 30 of the Acts Interpretation Act and s. 75 of the Trade PracticesAct are of little weight when the conflict in the working of the specificCommonwealth and State provisions is of a significant degree and, inparticular, are of no weight in a case of identical offences. I wouldsubmit, however, that if the leading judgments of Mason J. in Loewenthaland G.M.A.C. are understood to say that there is a legal and constitutional difference between direct and cover the field inconsistency, thenthat proposition was unnecessary to the decisions in those cases. Withoutrejecting the actual decisions in Loewenthal, G.M.A.C. and Miller,where the distinction was stated quite unequivocally by Barwick C.J.,the High Court could acknowledge that the difference between "direct"and "cover the field" inconsistency is merely a matter of words and thatthese tags, although being convenient descriptions, do not indicate anyanalytical difference. To say that a State law is directly inconsistent witha Commonwealth law merely means that the State law attempted tointerfere with the Commonwealth law's rights, powers and obligationsin a way which the Commonwealth did not intend to allow.

CONCLUSION

This article has attempted to analyse the theoretical framework ofs. 109 inconsistency. It must be acknowledged that the framework Ihave offered does not make it any easier to predict the outcome ofparticular questions of inconsistency. The uncertainty is, unfortunately,embedded in the two keys to the concept of inconsistency-Commonwealth legislative intention and power.

IntentionMr Murray-Jones discussed some of the factors which have affected

the constructional question of which field the Commonwealth intendedto cover.so This question of construction like any other question ofconstruction familiar to lawyers is at its most difficult in the situationwhich was not foreseen and therefore not provided for by the contractingparties/testator/settlor/Parliament. Inevitably the court must engagein the task of attributing to that person an intention which never enteredbis head.

The question is what would the creator of the relevant documenthave said about this situation if he had applied his mind to it. Althoughthis all depends on the fiction (some might say deceit) that the "true"intention is being ascertained, it is a very convenient device. It allows

90 Ope cit. 42-47.


. the spirit of the document rather than the express provisions (or lackthereof) to dictate the legal outcome. As Dixon J. pointed out in StockMotor Ploughs Ltd v. Forsyth it is not always easy to get an idea of thespirit of an Act, as for example, when it consists of a straight adoptionof a precedent from another Parliament or where an Act attempts tocodify common law.91

Power.

The essence of s. 109 is that it makes plain that the grants of specificheads of power to the Commonwealth were meant to be effective. (Itmay have even been possible to argue in the absence of s. 109 that itfollowed from covering Clause V of the Commonwealth of AustraliaConstitution Act92 or was implied in the Constitution that Commonv..'ealth laws should prevail over inconsistent State laws so as to makeeffective the specific grants of power to the Parliament with a nationwidecompetence.)9a Questions of inconsistency cannot be answered thereforewithout a close examination of the specific powers granted to the Commonwealth. It would seem in final analysis that there is no special magicin the word "inconsistency". Of late the High Court has been slippinginto the use of synonyms such as "direct conflict",94 "contradictory provision",90 "textual collision"," and it is submitted that these words97

indicate that the basic test is as set out supra.It is pertinent to recall at this stage that the development of the

doctrine of covering the field was closely associated with argumentsaround the word "settle" in s. 51 (xxxv). The "settlement" of industrial

91 "It [the Commonwealth Bills of Exchange Act] is not a statutory expressionof any design or plan conceived or policy devised by the legislature. It is anattempt to convert a part of the lex non scripta into lex scripta." (1932) 48 C.L.R.128, 137.

92 Covering clause V provides: "This Act, and all laws made by the Parliamentof the Commonwealth under the Constitution, shall be binding on the courts,judges, and people of every State and of every part of the Commonwealth,notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whosefirst port of clearance and whose port of destination are in the Commonwealth."

93 When s. 109, or rather cl. 101 of the Bill as it then was, was being consideredin Melbourne in 1898, Symon Q.C. explained its function thus: "Clause 101 ismerely declaratory. . . . The clause is necessary to establish in the Constitution theprinciple that where the Commonwealth legislates within' its legislative power itslaws must prevail." Debates of the Australasian Federal Convention ThirdSession, 643. Similarly A.B.C. v. Industrial Court (S.A.) (1977) 138 C.L.R. 399,418 per Murphy J.

94 Loewenthal's case (1974) 131 C.L.R. 338, 346 per Mason J.95 G.M.A.C. case (1977) 137 C.L.R. 545, 563 per Mason J. Also Tammelo, Ope

cit. 498-499, ~'... the logical criterion of the inconsistency between Commonwealthand State laws is their contradiction."

96 Miller v. Miller (1978) 22 A.L.R. 119, 123 per Barwick C.J.97 Compare Bailey, "Inconsistency with Paramount Law" (1939) 2 Res Judicatae

9, 9: "Etymologically the meaning of 'inconsistency' is plain and undisputed.It denotes contrariety, contradiction, repugnancy, discordance: such a contrarietybetween two propositions, for example, that they cannot both stand, or be truetogether."


disputes by award is a complex balancing act. For s. 51 (xxxv) to beeffective, States cannot "unsettle" the totality of industrial relations bymeddling with some specific that the Commonwealth deliberately leftuntouched. In Clyde Engineering Co. Ltd v. Cowburn, Isaacs J. wenton to apply the classic cover the field formula by emphasising thata power to "settle" disputes had to be conclusive "both as to what isgr-anted and what is refused".98

It must be noted that the width of the field that may be covered tothe exclusion of State laws is, ultimately, no more certain than is thescope of the incidental power. Under the incidental power the HighCourt is willing to consider the likely practical effect of laws. The answerto the question of whether a law will be held by the Court to bereasonably necessary or calculated to achieve a certain effect is no morepredictable than the answer to any other question of causation.

The Federal Balance

The article opened with the point that s. 109 is the cutting edge ofCommonwealth supremacy. It is submitted that a factor influencingthe retention of the "direct" inconsistency terminology has been thereluctance to acknowledge that the key to inconsistency is the intentionof one of the federal partners, the Commonwealth, to deny to a State,another federal partner, part of its law making power. Inevitably, however, any decision that an inconsistency exists depends on the finding thatthe Commonwealth validly made law its intention that its statement of thelaw relating to the carrying on of an activity or a particular kind of socialregulation should exclude State laws of the kind before the Court. The"direct" inconsistency terminology should be abandoned as it merelyserves to conceal the essential questions.

It is submitted further that the validity of a Commonwealth lawcovering a field should not depend on how the Commonwealth goesabout covering the field. In so far as the coverage depends on Commonwealth intention it should not matter in principle how the Commonwealthgoes about revealing its intention. Whether the Commonwealth proceedsby impliedly evincing an intention, or by expressly nominating the kindsof subject matters with which it is (or is not) concerned or by expresslynominating State laws it intends to preserve99 or override, should haveno relevance to the question of the power of the Commonwealth tocover the intended field.

Some would baulk at the last method of indicating the field covered.!Tt is submitted, however, that the difference between the categories ismerely a matter of form. No matter how euphemistically the expression

98 (1926) 37 C.L.R. 466, 491.99 R. v. Clarkson,· ex parte General Motors-Holden's Pty Limited (1976) 134

C.L.R. 56. Discussed supra p. 60.1 Cf. Wenn v. Attorney-General (Vic.) (1948) 77 C.L.R. 84.


"cover the field" is phrased, it must inevitably be acknowledged that itDleans "cover the field to the exclusion of State laws".2

The federal assumptions underlying the Constitution cannot howeverbe completely ignored. The proviso must be added that a Commonwealthlaw intending to cover the field may, like any other Commonwealth law,be invalid if it offends some prohibition implied from the nature of theConstitution.3

Postscript-The Wardley caseSince this article was written the High Court has handed down judg

ment in the case of Ansett Transport Industries (Operations) Pty Ltd v.Wardley." The case involved an apparent conflict between the VictorianEqual Opportunity Act of 1977 and an Agreement between AnsettTransport Industries (Operations) Pty Ltd and the Australian Federationof Air Pilots relating to employment of pilots.

The Agreement was certified under s. 28 of the Conciliation andArbitration Act 1904 (Cth) and, in the words of Stephen J., "has thesame effect as an award of the Commission for all purposes of that Act".The Agreement provided in s. 6B that

The services of a pilot shall be terminable by either the employeror a pilot-1. During the first six months of service, by seven days notice in

writing;2. After the completion of six months of service, by one month's

notice in writing;3. By the payment to the pilot of seven days' or one month's salary

in lieu of notice as aforesaidOR

4. By the forfeiture by the pilot of the last seven days' or onemonth's salary paid to him, in lieu of notice as aforesaid.

A pilot whose services are terminated whether by summary dismissalor notice shall be given the reasons for this dismissal in writing, inthe notice of dismissal, and shall have recourse to the GrievanceProcedures....

Ansett wished to dismiss Wardley from her position as a pilot becauseshe is a woman. So to act would have constituted an offence under s. 18of the Victorian Act. That section made it unlawful for an employer todiscriminate against an employee on the ground of sex by dismissingthe employee.

2 Australian Coastal Shipping Commission v. O'Reilly (1962) 107 C.L.R. 46,56-57 per Dixon C.l. Emphasis added.

3 Generally, West v. Commissioner of Taxation (N.S.W.) (1937) 56 C.L.R.657; Wenn v. Attorney-General (Vic.) (1948) 77 C.L.R. 84; Zines, "Sir OwenDixon's Theory of Federalismu (1965) 1 F.L. Rev. 221; Payroll Tax case, Victoriav. Commonwealth (1971) 122 C.L.R. 353.

" (1980) 28 A.L.R. 449.

-.:


The main issues was whether the Victorian provision prohibiting sucha dismissal was inconsistent with the apparent right under Common\\-ealth law to dismiss any employee in the prescribed manner. TheCourt divided, with Stephen, Mason, Murphy and Wilson JJ. holdingthere was no inconsistency between the Commonwealth and State lawsand Barwick C.J. and Aickin J. holding that there was. The individualjudgments in this case either directly support or are consistent with theproposition that there is no analytical demarcation between direct andcover the field inconsistency.

Barwick C.J., for example, said that in any question of inconsistencythe "meaning and scope" of the relevant part of the federal law mustfirst be ascertained. His Honour seems to have introduced the word"scope" to describe the concern of a particular provision in a Commonwealth Act in order to avoid confusion with the use of the word "field"to describe the concern of the Commonwealth Act as a whole.

"Scope" is defined by the Oxford English Dictionary to mean

1. end aimed at, ...2. outlook, purview, sweep or reach or sphere of observation or

action....

Again the use of a spatial term tells the tale. No question of inconsistencycan be resolved without first determining what "fields" the Commonwealth intended to cover by particular provisions and by the Act as awhole. The introduction by his Honour of the word "scope" with itstwo apt main alternative meanings does, with respect, indicate theessence of the problem more successfully than have any of the othermetaphors and paraphrases offered in judicial expositions in the past.

As well as offering his own general comments on the nature of theproblem, Barwick C.J. adopted the reasoning of the other dissentingjudge, Aickin J. Aickin J. made some statements along the lines of theanalysis offered in this article. First, "the critical matter is the field ofthe federal law", and later:

The two different aspects of inconsistency are no more than areflection of different ways in which the Parliament may manifestits intention that the Federal law, whether wide or narrow in itsoperation, should be the exclusive regulation of the relevantconduct. Whether it be right or not to say that there are two kindsof inconsistency, the central question is the intention of a particularFederallaw.6

That statement rejected the idea that there is an analytical schism betweendirect inconsistency and cover the field inconsistency and the idea thatdirect inconsistency can exist independently of Parliamentary intention.

The intention which Aickin J. discerned in the relevant law resultedin him holding, with the agreement of Barwick C.J., that there was

I) There were other questions of inconsistency involved.6 (1980) 28 A.L.R. 449, 479.


inconsistency. The majority judges disagreed with the minority not somuch in their perception of the nature of the problem but rather in theconstruction they put on the Commonwealth provisions.

In answer to Ansett's alternative submissions of direct inconsistencyand cover the field inconsistency, Stephen J. commented that the "question a,s a whole resolves itself, in the end, into a search for legislativeintent"." His Honour interpreted s. 6 as being intended to create a rightto dismiss but held that there was no intention to create an absolute right."On the contrary it is a right the nature of which is to be understoodagainst the background to its operation which general laws of the land,whether State or Federal in origin, provide."8 His Honour inquired intothe area, purpose and subject matter of the Agreement and concludedthat the Agreement's grant of a right to dismiss was not intended tocreate a right to dismiss upon the discriminatory ground "that the pilotis a woman".9 His Honour's construction sufficed to reject both groundsfor inconsistency.

Murphy and Wilson JJ. also considered that s.6 of the Agreementwas not intended as an exhaustive statement on the topic of dismissal. Itseems, although their Honours did not say so directly, that they thoughtthe field of s. 6 of the Agreement was as stated by Mason J.

Mason J. differed somewhat from Stephen J. in his construction ofthe Agreement. Mason J. thought s. 6 of the Agreement was not evenintended to result in a qualified right to dismiss. His Honour consideredthat s. 6 was merely concerned to prescribe the procedure to be followedby an employer when exercising rights to dismiss arising under andotherwise governed by the general law.

On the question of the general nature of the problem Mason J. didDlake a statement tending towards the analysis argued for in this articlewhen he said:

The issue therefore turns upon the interpretation of the Agreementand, despite the emphasis given to the claim of direct inconsistency,the question is whether the provisions of the Agreement wereintended to operate, subject to, or in disregard of, the generallaw.10

His Honour also signalled something of a downgrading at least of thesignificance of categorising the issue as direct or cover the field. Thesecategories, which were apparently analytically discrete kinds of inconsistency for his Honour in Loewenthal and G.M.A.C., have now becomemere tests or guidelines. Furthermore,

As the various tests which have been applied by the court are alldesigned to elucidate the issue of inconsistency it is not surprising

'lId. 455.SId. 454.9Id.459.

10Id.464.

;(1


that they are interrelated and that in a given case more than onetest is capable of being applied so as to establish inconsistenc¥.11

It is possible that his Honour could reconcile this statement with theEtatements in Loewenthal and G.M.A.C. to the effect that direct andcover the field inconsistency are different kinds of inconsistency. Thereis nothing illogical in one set of facts giving rise to different kinds ofinconsistency. That course is possible. It is to be hoped, however, thatthese signals from Mason J. and the less equivocal statements fromStephen J. and more particularly, Aickin J., mean that the High Courthas accepted that

The two different aspects of inconsistency are no more than areflection of different ways in which the Parliament may manifestits intention that the federal law, whether wide or narrow in itsoperation, should be the exclusive regulation of the relevantconduct.12

1t/bid.121d. 479 per Aickin J.

the nature of inconsistency under section 109 of the

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