LAWS1116 Lecture 5

Inconsistency between Commonwealth and State Laws

Kinds of Conflict/Inconsistency

  • Inter-governmental (one government seeking to bind another)
  • Inter-legislative (laws passed by both governments in the same area conflicting)

Statutory Solutions

  • Constitution Act (UK) – clause 5 – Cth laws are binding notwithstanding the laws of the states (based on US Federal Supremacy clause) – not really used/relevant due to s109
  • s109 – When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

“Law” in the context of s109

  • Statutes passed by Cth/State parliament
  • Regulations and subordinate legislation
  • NOT administrative orders, directions, policies, etc.
  • NOT industrial awards (EXCEPT when set by statute/regulation)
  • NOT the common law (universal in application due to all common law appeals being under the High Court)

“Invalid to the extent of the inconsistency”

  • only the inconsistent aspects are affected
  • means “inactive” rather than “destroyed” in this specific context – though normally when a law is referred to as ‘invalid’ it means void at initia – considered to have never existed)
  • upon repeal of Cth law, State law ‘reactivates’


  • conflict of duties (complete inability to obey both laws simultaneously)
  • modification of rights/liberties (right conferred by Cth law but prohibited by State law – theoretically CAN obey both, but still considered inconsistent)
  • covering the field (Cth statute considered to ‘cover the field’ completely invalidates any state legislation in that particular field)
  • Current status: Must test against all three – if any fail, there is probably an inconsistency.

Inconsistency 1: Conflict of Duties

Case 1: Australian Boot Trade Employees Federation v Whybrow (1910)

  • Issue: Commonwealth and State both set minimum wage laws, the Commonwealth one being slightly higher than the State. Should the Commonwealth one apply?
  • Held: Yes, the Commonwealth one should apply
  • Justification: There is no inconsistency – it is possible to obey both laws by simply paying the higher of the two minimum wages

Case 2: R v Licensing Court of Brisbane; Ex parte Daniel (1920)

  • Issue: Wartime act prohibited state elections/referenda from occurring on the same day as federal elections. State law set a referendum to be held on such a conflicting date
  • Held: Yes, there was a conflict of duties – the state referendum could not take place
  • Justification: This would have caused a conflict of duties for electoral officials, who could not have obeyed both Commonwealth and State laws simultaneously.

Inconsistency 2: Modification of Rights/Liberties

Case 1: Colvin v Bradley Brothers (1943)

  • Issue: NSW law prohibited women working on milling machines while Federal law permitted women to work anywhere unless the board made a declaration to the contrary. Could women work on milling machines in NSW?
  • Held: Yes, women could work on milling machines in NSW
  • Justification: The Commonwealth law granted a right that was inconsistent with the NSW legislation – as such it was made invalid to the extent of that inconsistency under s109.

Case 2: Clyde Engineering v Cowburn (1926)

  • Issue: State award fixed working week at 44 hours per week – overtime required for extra. Commonwealth law fixed it at 48 hours per week – right to deduct for going under. What was the working week, and could they deduct from people who worked between 44-48 hours per week?
  • Held: Yes, there was an inconsistency so Federal law prevailed – anyone working less than 48 hours could face deductions.
  • Justification: Majority of judges held it was a Modification of Rights/Liberties issue (The Commonwealth law granted a right to deduct that was inconsistent with state legislation), with Isaacs introducing the idea of “covering the field” – that the Federal law sought to cover the entire area, and ANY state law in that area should be considered inconsistent

Inconsistency 3: Covering the Field

How to determine if a law is inconsistent due to “covering the field”

1. What is the Subject Matter?
2. Did the Commonwealth INTEND to cover the field with relation to that subject matter?
3. Did the State law enter INTO that specific field?

Implicit “coverage” of fields

  • Nature of Subject
  • Whether all aspects are dealt with
  • Extend and detail of the federal regime

Case 1: Ansett v Wardley (1980)

  • Issue: Federal Law said that employers could employ or dismiss pilots subject to specific procedural conditions. State law prohibited sexual discrimination in employment/dismissal. Could Ansett sexually discriminate/dismiss a pilot if they met those procedural requirements?
  • Held: No inconsistency
  • Justification: Stephens – two laws focused on different fields – Cth looked at industrial disputes, State looked at sexual discrimination – therefore no inconsistency between the two
  • Justification: Mason – Federal award was not “exhaustive”, just gives general laws for hiring/dismissal procedures. It was not set up to “cover the field”

Case 2: O’Sullivan v Noarlunga Meat (1954)

  • Issue: Statute and Federal licensing and registration for slaughterhouse regimes overlapped (The federal being required for anyone wishing to export meat, the state being general licensing requirements) Should a slaughterhouse be required to meet the state requirements if it already met the Federal ones?
  • Held: 3:3 split, with the CJ prevailing – No, obeying the Commonwealth law is sufficient
  • Justification: The Commonwealth legislation was sufficiently detailed that indicated an intention to “cover the field”

Express Intention to “cover the field” can be the result of:

  • Commonwealth declaration that it seeks to cover a field
  • Commonwealth declaration that it seeks to “clear” a field from legislative oversight
  • Commonwealth declaration that it DOES NOT seek to cover a field (leaving state laws in place/re-validating any that had been declared dormant)

How far can the Commonwealth go when specifying?

  • Can only specify that they do not wish to cover the field
  • Cannot specify that they don’t wish to conflict duties or modify rights, held that this would go against section 109 of the constitution.

“Cover the Field” Riddle

Case 1: Viskauskas v Niland (1983)

  • Issue: Aborigines were refused service at a pub for alleged racial reasons. Proceedings brought before State and Federal discrimination laws. Owners of pub claimed NSW Act was inconsistent and therefore inoperative
  • Held: State law was inconsistent and invalid
  • Justification: Federal law covered “the entire field of racial discrimination” – operates equally and without discrimination to all states (under the External Affairs power – s 51 (xxix)) which meant that the Commonwealth law intended to cover the entire field, making the State law invalid

Result: Commonwealth Parliament amendment to discrimination Act stating it was NOT intended to cover the field, and “shall be deemed never to have been intended” to do so.

Case 2: University of Wollongong v Metwally (1984)

  • Issue: Egyptian postgraduate student lodged complaints about events that occurred during the period of the NSW Acts dubious status. University challenged the NSW awards saying the amendment did NOT retrospectively reactivate the NSW Act.
  • Held: The Commonwealth cannot retrospectively undo the effects of section 109
  • Justification: Gibbs (Majority) – Commonwealth cannot deprive section 109 of its operation, as they are bound by the constitution. (s109 > Cth)
  • Justification: Deane (Majority) – Constitution protects the people of Australia – makes sure they are protected from inconsistent laws – s109 is a source of rights, and prevails in the appearance of inconsistency.
  • Justification: Mason (Minority) – There was never a FACTUAL inconsistency, as it had been removed retrospectively, and the Cth NEVER intended to cover the field – s109 is not a source of rights, and should only operate where a FACTUAL inconsistency exists.