Assignment 1

On 5 June 2012 the Governor-General gives her royal assent to new Commonwealth legislation, which says that no financial corporation can employ workers under the age of 17 years. On 17 July 2012, however, the Governor of New South Wales signs another bill allowing minors to work for such corporations under special conditions.
Discuss the validity of the above hypothetical laws.

In discussing the validity of these hypothetical laws, a number of issues must be addressed. Firstly, it must be found whether the laws are made within the authoritative powers dealt to the State and the Commonwealth, making them valid under the relevant provisions of the Commonwealth of Australia Constitution Act. If it is found that both the laws are valid in this sense, the issue will be whether the two laws are inconsistent with one another. Lastly, if it is found that the two laws are inconsistent, section 109 will come into force, rendering the state law inoperative.

Is the Commonwealth law valid?

To use s109 to invalidate a State law, first it must be found whether the Commonwealth law and the State law are valid. ‘If either is invalid ab initio by reason of lack of power, no question can arise under the section.’

A Commonwealth law is valid if it is made within the scope of power assigned to the Commonwealth under the Constitution.

S51 (xx) of the Act states:

Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
Given that s51(xx) allows the Commonwealth to make laws regarding financial corporations formed within the limits of the Commonwealth, and the hypothetical federal law contains the words financial corporations it can be assumed that this law fits within the Commonwealth scope of power under s 51(xx). Thus, this law is validly made.
Is the State law valid?

Similarly, a State law will be valid if it is made within the constitutional powers dealt to the States by the Constitution. S107 of the Constitution enables States to continue to make laws which they previously could make since before the Federation of the states, except where the law relates to an exclusive Commonwealth power.

The following powers are the exclusive powers of the Parliament:
Section 52: Exclusive powers of the Parliament
The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
(iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.
Section 90: ‘The parliament shall have exclusive powers over customs, excise and bounties.’

On the facts, the State law purports to ‘allow minors to work in financial corporations in special circumstances.’ This does not relate to any of the exclusive powers under ss52 and 90. Rather it fits under the same Head of Power enabled by s51(xx). Therefore, s107 will not render it invalid. Furthermore, as the State has the power to make laws on any of the topics that it could before federation, including those under any Commonwealth head of power, this law is valid.

Inconsistencies

As both laws are valid, the central issue to validity can now be assessed. That is, whether the two laws are inconsistent or not and thus, whether by s109, the State law will be rendered invalid.
S109 of the Constitution assists in solving inconsistencies. It states that: ‘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.’
This doctrine has led to three approaches to inconsistency. According to these tests, inconsistency is present, and the Commonwealth law prevails:

i) If it is impossible to obey both the laws (direct inconsistency). ii) If one law purports to confer a legal right, privilege or entitlement that the other law purports to take away or diminish (direct inconsistency). iii) If the Commonwealth law demonstrates a legislative intention to cover the field & a State law also operates in that same field (indirect inconsistency).

i) Is it impossible to obey both the laws?

Mutually contradictory laws make it impossible to be able to obey both sets of the law. ‘This refers to a logical impossibility: as in one of law requires that you must do X and the other requires that you must not do X.’

For instance, in R v Licensing Court of Brisbane a Queensland act stipulated that a referendum on liquor trading would occur on the Senate Election Day. The Commonwealth also passed a law stating that no State government referendum could be held on the same day as Senate Polling Day. The High Court held that the laws were inconsistent as the only way to obey the State law was to disobey the Commonwealth one.
On the facts, the State law allows minors to work for financial corporations under special conditions. This would out rightly disobey the Commonwealth legislation that disallows any financial corporation from employing workers under the age of 17 years. This is because it would mean that in NSW, anyone under 18 would be able to work for financial corporations in special situations. Therefore, on these grounds it could be argued that the laws are inconsistent and should invoke the operation of s109 to invalidate the state law.
Additionally, in Dao v Australian Postal Commission two Vietnamese ladies were refused work on the grounds of their sex as a State law was deemed to be in clear collision with a Commonwealth Act. The State Act was seen as a clear usurpation of the Commonwealth one and therefore by force of s109, the State law had to give way. Based on this, perhaps the hypothetical laws are not completely inconsistent under test i). This is because the words of each law are not in total and clear collision with one another and one does not precisely usurp the other, rather the state law seems more to significantly modify the Commonwealth one.

ii) Does one of the laws confer a Right to which the other takes away or modifies? Perhaps then it would be more useful to look at test ii) in determining the validity of the laws. Particularly as the three tests are not mutually exclusive.

Test ii) was looked at in Colvin v Bradley Brothers, where a Commonwealth law conferred a right on employers in certain industries to employ women to work on certain machines. The State provision stated that it was an offence to do so. The courts held that it was impossible to obey both laws since nothing in the Commonwealth law required the employment of females. S109 was applied invalidating the state law.

Following this, the State law confers a right on minors to be able to work for financial corporations in some circumstances, and the Federal law takes away this right by disallowing under 17 year olds to be employed at all by these financial corporations. Therefore, the laws are inconsistent as one law purports to infer a right, which the other takes away.

In Blackley v Devondale Cream, it was held that ‘If the Commonwealth has conferred a right, the State cannot take it away or modify it.’ Following this, it could be said that the State law tries to modify the Commonwealth law, by changing the words ‘under 17’ to ‘minors’ and allowing young persons to work for corporations ‘under special circumstances’ instead of under ‘no circumstances’ at all. On these authorities, the State’s modification of the Commonwealth law should make the laws inconsistent, rendering the state law invalid and the Commonwealth law to prevail by s109.

Alternatively, it could be suggested that the two laws could work in conjunction with one another like in Commercial Radio Coffs Harbour v Fuller. In this case the Federal law and the State laws were deemed to be able to operate at the same time without inconsistency. Also, it has been suggest that if the Commonwealth act was intended to be ‘supplementary to or cumulative upon the state law,’ there is no inconsistency.
On these grounds, if one were to try and operate the two laws simultaneously, the result would be that those above 17 years but below 18 years would be able to work for financial corporations in the State of NSW alone, under special circumstances. This could be seen as the Commonwealth act only being intended to be supplementary to or cumulative upon the state law, in which case there would be no inconsistency like in Ex Parte Mclean.
However, this seems to be a weak argument when the following cases are considered. To operate them both at the same time in this way would be to detract from the effect of the Federal Law. This occurred in Wallis v Donward-Pickford (North Queensland) and in Goulden’s Case where it was held that inconsistency exists where a State law ‘would alter, impair or detract from’ a Commonwealth regulation.
Thus, the hypothetical state law would indeed alter and impair the Commonwealth law, as it would stop it from having much effect at all. The extent of this effect would depend on to what the special circumstances refer to in the State law. Upon these grounds, it is likely that the courts would construe the laws as inconsistent and thus, s109 would operate to invalidate the State law, making the Commonwealth law prevail.

iii) Does the Commonwealth Law purport to ‘cover the field?’

So far, it would seem that the laws are inconsistent on the grounds that the state law would alter, impair or detract from the Federal one. However, it is difficult to foresee what outcome the courts will come to when determining the validity of two laws. In practice, looking at all three tests helps to find a conclusion.

This test proposes that if the Federal statute ‘intended to cover the field and the State law also operates in that same field, then there need not be a direct contradiction between the two laws.’ To work out whether there is any inconsistency using this test, ‘the answer to the following two questions must be yes:’

1. Is the Commonwealth law intended to be exclusive? That is, did the Commonwealth legislature expressly or impliedly evince its intention to cover the whole field? 2. Does the State law operate in the same field or subject matter as the Commonwealth law?

The courts will interpret whether the laws cover the same subject matter, narrowly. In Ansett Transport Industries (Operations) Pty Ltd v Wardley the Federal and the State laws were found to operate on completely different subject matters and therefore, there was no inconsistency. Given that the hypothetical laws both attempt to govern the employment of young persons within financial corporations, it should be concluded that a collision would be highly likely to occur between them. Therefore, question two is answered positively.

The answer to first question, however, is not as clear. This is because there is no express clause in the Commonwealth provision that shows an intention to cover the field. Nor does the Federal law cover a specific topic where it could be inferred that the Parliament intended to cover the field. What’s more there are no further details given about the Commonwealth act that might allow it to be ‘inferred’ that the Commonwealth intended to cover the field. Consequently more information is needed on the Federal Act to decide whether it expresses a ‘complete, exhaustive or exclusive intention to govern the law in relation to young persons working for financial corporations in Australia.

Conclusion

The hypothetical Commonwealth law and State law have been proved to be valid under the powers assigned to each government type under the Federal Constitution. This has meant that the validity of each law could be assessed using the three tests of inconsistency. The first test did not adequately provide an answer as to validity of the laws. This is because it was not clear as to whether the state law clearly usurped the Commonwealth law like in Dao’s case. What’s more the words used in each law make it unclear as to whether a direct collision between the laws occurred like in Wallis v Donward-Pickford.

The second test did enable a clearer conclusion to be made, finding an inconsistency between the laws as the State law was seen to impair and detract from the Commonwealth one. The Coffs Harbour v Commerical Radio case served as an example that sometimes a Commonwealth law and a state law may work in unison without there being an inconsistency. Even though this was somewhat possible with the two hypothetical laws, this argument was dismissed on the grounds that the State law significantly impairs, modifies and detracts from the Commonwealth law.

Lastly, the ‘cover the field’ test was used to help determine the validity of the laws. However, this test was not successful because even though the hypothetical laws found to be based on the same subject matter, it was not clear that the Parliamentary intention was to cover the field exhaustively and there would need to be more information on the Commonwealth Act if this test were to determine the laws as inconsistent.

Therefore, on the basis that the second test provides the clearest conclusion, as the state law greatly impairs and detracts from the Commonwealth one, in so far as its ‘special circumstances’ would permit, there is a direct inconsistency between the two hypothetical laws. Under s109, where a Commonwealth law and a State law are inconsistent, the Commonwealth law should prevail. Thus, it is likely that the Commonwealth law would be held to be valid and the State law, by s109, should become inoperative.

Word Count: 2099 (not including headings & quotes)

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[ 1 ]. The Commonwealth of Australia Constitution Act, (Cth) s109.
[ 2 ]. Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557.
[ 3 ]. Ibid.
[ 4 ]. Blackshield & Williams, Australian Constitutional Law & Theory: Commentary and Materials (The Federation Press, 5th ed, 2010) 323.
[ 5 ]. Commonwealth of Australia Constitution Act, s51 (xx).
[ 6 ]. Commonwealth of Australia Constitution Act, s107.
[ 7 ]. Blackshield & Williams, above n 264-269.
[ 8 ]. The Commonwealth of Australia Constitution Act, (Cth) s109.
[ 9 ]. Blackshield & Williams, above n 333.
[ 10 ]. R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23.
[ 11 ]. Colvin v Bradly Brothers Pty Ltd (1943) 68 CLR 151.
[ 12 ]. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466.
[ 13 ]. Blackshield & Williams, above n 333.
[ 14 ]. Blackshield & Williams, above n 333.
[ 15 ]. R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23.
[ 16 ]. Ibid.
[ 17 ]. Ibid.
[ 18 ]. Dao v Australian Postal Commission (1987) 162 CLR 317.
[ 19 ]. Ibid.
[ 20 ]. Blackshield & Williams, above n 338.
[ 21 ]. Colvin v Bradly Brothers Pty Ltd (1943) 68 CLR 151.
[ 22 ]. The Commonwealth of Australia Constitution Act, (Cth) s109.
[ 23 ]. Blackshield & Williams, above n 333.
[ 24 ]. Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258 (Barwick CJ).
[ 25 ]. The Commonwealth of Australia Constitution Act, (Cth) s109.
[ 26 ]. Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47
[ 27 ]. Ex parte Mclean (1930) 43 CLR 472.
[ 28 ]. Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388.
[ 29 ]. Australian Mutual Provident Society v Goulden (1986) 160 CLR 330.
[ 30 ]. Victoria v Commonwealth [(The Kakariki) (1937) 58 CLR 618 at 630]
[ 31 ]. Commercial Radio Coffs Harbour Fuller (1986) 161 CLR 47,
[ 32 ]. Blackshield & Williams, above n 333.
[ 33 ]. Blackshield & Williams, above n 333.
[ 34 ]. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466..
[ 35 ]. Blackshield & Williams, above n 358-364.
[ 36 ]. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237.
[ 37 ]. Wenn v Attorney-General (Victoria) (1948) 77 CLR 84.
[ 38 ]. See e.g. R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; Miller v Miller (1978) 141 CLR 269.
[ 39 ]. O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565.
[ 40 ]. Ex parte Mclean (1930) 43 CLR 472.
[ 41 ]. Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388.