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Published online by Cambridge University Press: 24 January 2025
In a federal system there is a constant need to resolve problems created by conflicting provisions of laws enacted by. the federal legislature and those enacted by a state or provincial legislature. In the case of a unitary system it is merely the question of a later statute conflicting with an earlier statute enacted by the same legislature, and in such an instance, the conflict is resolved by regarding the earlier law as having been impliedly repealed by the later law.
In the Australian federal system the conflict is resolved by resorting to the express provisions of s 109 of the Commonwealth Constitution, which reads as follows:
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.
1 However, note the following observation of Mason J in The University of Wollongong v Metwally (1984) 59 ALJR 48, 53: “In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time. See, for example, Co-operative Committee on Japanese Canadians v Attorney-General (Canada) [1947] AC 87 at 103, a decision on s 2 of the Colonial Laws Validity Act 1865 (Imp).”
2 See also covering clause 5 of the Commonwealth of Australia Constitution Act.
3 Article 75 of the Malaysian Constitution provides:
If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.
4 Victoria v The Commonwealth (1937) 58 CLR 618, 634. See also: Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 939; Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399,418 per Murphy J. cf Gibbs CJ in The University of Wollongong v Metwally (1984) 59 ALJR 48, 51. The US Constitution does not have a provision equivalent to s 109. However, State laws found inconsistent with federal laws are struck down by the supremacy clause in art VI, s 2 which is the counterpart of covering clause 5 of the Commonwealth of Australia Constitution Act: PH Lane, The Australian Federal System with United States Analogues (1972) 692.
5 (1984) 59 ALJR 48.
6 (1983) 57 ALJR 414.
7 (1984) 59 ALJR 48, 49.
8 The other sub-sections of s 6A read as follows:
(2) Where -
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which he would, but for this subsection, have been entitled to make a complaint under this Act, the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this subsection, terminated.
(3) Where-
(a) a law of a State or Territory that further the objects of the Convention deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act,
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
9 The following questions were posed to the High Court in the Wollongong case (1984) 59 ALJR 48, 49 per Gibbs CJ:
(1) Whether the enactment of the provisions of s 3 of the Racial Discrimination Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for reason that in purporting to do so they deny the operation of s 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the relevant provisions of the Anti-Discrimination Act 1977.
(2) Whether, in the event of an affirmative answer to (1) above, the provisions of Pt II of the Anti-Discrimination Act were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of s 109 of the Constitution.
10 G Evans, “Discrimination and Human Rights” Paper presented at the 22nd Australian Legal Convention, Brisbane, 7 July 1983.
11 Howard, C, Australian Federal Constitutional Law (3rd ed 1985) 41.Google Scholar
12 Ibid.
13 Ibid 38.
14 Ibid 45. As for the third type of inconsistency see G Sawer, Australian Federalism in the Courts (1967) 139-140.
15 (1926) 37 CLR 466, 489-490.
16 (1930) 43 CLR 472.
17 (1926) 38 CLR 441.
18 (1930) 43 CLR 472, 483.
19 Butler v A-G (Vic) (1961) 106 CLR 268.
20 (1977) 140 CLR 236, 243.
21 R v Credit Tribunal; Ex parte GMAC, Aust (1977) 137 CLR 545, 563 per Mason J.
22 (1915) 20 CLR 425.
23 (1984) 59 ALJR 48, 51.
24 Ibid 56.
25 Ibid 51.
26 Ibid.
27 Ibid 59.
28 Ibid.
29 Ibid.
30 Ibid 53. Quick and Garran said “[s 109] ... places beyond doubt the principle that the Federal Constitution and the laws passed by the Federal Parliament, in pursuance of that Constitution, prevail over t)1e State Constitutions and the State laws passed by the State Parliaments, in pursuance of the State Constitution”. The Annotated Constitution of the Australian Commonwealth (1901) 939.
31 (1984) 59 ALJR 48, 63.
32 Ibid 57.
33 Ibid.
34 Ibid 53.
35 Ibid 63.
36 Ibid 57.
37 Ibid 54.
38 Ibid 63.
39 Ibid 54.
40 Ibid 56.
41 Ibid 61.