Navigating conflicting State and Commonwealth laws

What happens when a State law conflicts with a Commonwealth law? Section 109 of the Constitution provides the answer (at least in theory!). Where an 'inconsistency' arises, the Commonwealth law prevails and the inconsistent parts of the State law become inoperative. In practice, determining whether an inconsistency exists can be tricky. The issue has sparked lengthy judicial debate on everything from IVF laws to the regulation of hot air balloon rides.

How to identify an inconsistency

An inconsistency might arise if a State and federal law relate to the same subject matter.  To identify an inconsistency, three questions should be asked:

1. Are the Commonwealth and State instruments 'laws'?

Section 109 only applies to 'laws'. Laws include Acts of Parliament, subordinate or delegated legislation (such as regulations) and other instruments given effect to by legislation (such as industrial awards). In contrast, the common law and administrative orders or directions are not 'laws' for the purposes of section 109.

2. How does each law operate?

Before working out if there is a conflict, the scope and operation of each law must be determined by a process of statutory interpretation.

3. Is there an inconsistency?

Once their scope and operation is determined, the two laws should be compared to determine whether there is a 'real conflict'. A conflict will arise if a State law 'alters, impairs or detracts' from the operation of the Commonwealth law. This will happen if a State law:

• directly clashes with the operation of the Commonwealth law
• applies to a matter that is comprehensively regulated by a Commonwealth law
• applies in a particular case inconsistently with a Commonwealth law or its application

Are the laws 'directly' inconsistent?

A classic case of inconsistency is where there is a 'direct' clash between the State and Commonwealth laws, such as if one law requires or permits an action that the other forbids.

A State and Commonwealth law are directly inconsistent if it is impossible to obey both laws. For example, in McBain v Victoria, the Federal Court found a direct conflict between a Victorian law, which required a woman to be married or in a de facto relationship to be eligible for IVF treatment, and the Commonwealth Sex Discrimination Act 1984, which made it unlawful for a person to refuse to provide services on the ground of marital status.

Is the Commonwealth law intended to 'cover the field'?

Even if there is no conflict on the face of the laws, a State law will be inconsistent if the Commonwealth law is intended to be a complete statement of the law on a subject matter (i.e. to 'cover the field'), leaving no room for State laws to operate in that area.

Some Commonwealth laws expressly state that they (or parts of them):

• are to apply to the exclusion of State laws (e.g. Airports Act 1996 and Biosecurity Act 2015)
• conversely, are not intended to exclude or limit the concurrent operation of State laws (referred to as 'concurrent operation' provisions) (e.g. Environment Protection and Biodiversity Act 1999, Corporations Act 2001 and Racial Discrimination Act 1975) — although there may still be inconsistency if the two laws cannot, in fact, operate concurrently (e.g. if there is a direct conflict)

However, working out if a Commonwealth law is intended to be a complete statement of the law on a particular subject matter is not always easy. Where there is no express intention, attention needs to be paid to the terms, nature and subject matter of the Commonwealth law. For example, a high level of detail might suggest that the Commonwealth law is intended to be a complete statement of the law on the subject, and certain subject matters are regarded as requiring uniform regulation (e.g. prevention of collisions at sea).

The High Court decision delivered earlier this year Work Health Authority v Outback Ballooning Pty Ltd demonstrates the operation of the 'covering the field' test. The issue arose following the death of a woman while boarding a hot air balloon in the Northern Territory. A complaint was filed against the hot air balloon company under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) for failing to minimise risks for embarking passengers. The complaint was initially dismissed on the basis that its subject matter was in a field covered by Commonwealth law (the Civil Aviation Act 1988). On appeal, the majority of the High Court found that the NT Act was not inconsistent with the Commonwealth civil aviation law, because the Commonwealth law was intended to operate within the framework of other State, Territory and Commonwealth laws, including the NT Act. In reaching its decision, the majority noted that the relevant part of the Commonwealth Act explicitly provided that it 'does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law'.

But this decision was not unanimous - Justices Gageler and Edelman found that the Commonwealth law did generally intend to 'cover the field', leaving no room for the operation of State law (though Justice Gageler recognised certain exceptions, including one that applied to the circumstances of this case). Their reasons pointed to the object of the Commonwealth law (to 'establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation law') and noted that it would be impracticable to have separate regulation of domestic and international aviation. Justice Gageler also questioned the utility of the 'direct' and 'indirect' ('covering the field') inconsistency tests, emphasising that the central question is always the intention of a particular Commonwealth law. Whether Justice Gageler's approach to inconsistency will be favoured in the future remains to be seen.

Are any powers under the laws being exercised inconsistently?

Even if the laws are not themselves inconsistent, a conflict might arise in their operation. For example, if both laws empower authorities to exercise powers on the same subject matter, a conflict might arise if the powers are exercised inconsistently. In such cases, the inconsistent exercise of power under the State law is invalid, not the State law itself.

What happens to the inconsistent State law?

If there is an inconsistency, the State law will be invalid to the extent that it conflicts with the Commonwealth law. However, the State law will revive if the Commonwealth law is repealed or otherwise ceases to operate.

This publication was prepared with the assistance of Julia Freidgeim, Senior Solicitor.

Contact our team

If you are unsure about the operation of a State or Commonwealth law, or are involved in litigation where s 109 of the Constitution has been raised, VGSO's experts in constitutional law and intergovernmental relations can help.

Alison O'Brien
Assistant Victorian Government Solicitor, Public Law & Planning
Phone: 8684 0416
Mobile: 0409 385 343
Email: alison.obrien@vgso.vic.gov.au

Jessica Cleaver
Managing Principal Solicitor, Public Law & Planning
Phone: 8684 0402
Mobile: 0458 835 932
Email: jessica.cleaver@vgso.vic.gov.au