Construction of Federal and State statutes-Australia
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
In Austral Pacific Group Limited (In liquidation) v Airservices Australia [1]at 144, further said:
The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act “otherwise provides” within the meaning of s 79 of the Judiciary Act. GPAO[2] shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase “covering the field”.
Note: The section 109 of the constitution reads as follows: Inconsistency of laws – ‘When a law of a Stateis inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.‘,andfurther the section 79 of the Judiciary Act reads as: JUDICIARY ACT 1903 - SECT 79
State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
(2) A provision of this Act does not prevent a law of a State or Territory covered by subsection (3) from binding a court under this section in connection with a suit relating to the recovery of an amount paid in connection with a tax that a law of a State or Territory invalidly purported to impose.
(3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following:
(a) limiting the period for bringing the suit to recover the amount;
(b) requiring prior notice to be given to the person against whom the suit is brought;
(c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount.
(4) For the purposes of subsection (2), some examples of an amount paid in connection with a tax are as follows:
(a) an amount paid as the tax;
(b) an amount of penalty for failure to pay the tax on time;
(c) an amount of penalty for failure to pay enough of the tax;
(d) an amount that is paid to a taxpayer by a customer of the taxpayer and is directly referable to the taxpayer's liability to the tax in connection with the taxpayer's dealings with the customer.
Thus, if the Commonwealth law expressly or by implication makes contrary provision to the putative surrogate federal law (the State law to be picked up) the State law will not be picked up. This can be seen to be inconsistency or repugnancy such that the two laws cannot be reconciled one with the other such that an implied repeal to the extent of the inconsistency would occur: Metwally at 463. Such inconsistency has been described as “actual contrariety”[3].
[1] Austral Pacific Group Limited (In liquidation) v Airservices Australia [2000] HCA 39; 203 CLR 136 per GLEESON CJ and GUMMOW and HAYNE JJ wherein it was observed at paragraph 17: The question remains whether s 79 was inapplicable because provision otherwise was made by another law of the Commonwealth, namely the Compensation Act. The criteria to be applied are indicated in Northern Territory v GPAO[[1999] HCA 8; (1999) 196 CLR 553 at 587-589 [78]- [83], 606 [135], 650 [254]. ]. The question is whether the operation of the Compensation Act would so reduce the ambit of the Contribution Act that the provisions of the Compensation Act are irreconcilable with the other law. If so, the Compensation Act "otherwise provides" within the meaning of s 79 of the Judiciary Act. GPAO shows that the question is not answered by application of the doctrine identified, in the decisions construing s 109 of the Constitution, with the phrase "covering the field".
[2]Northern Territory v GPAO [1999] HCA 8; 196 CLR 553
[3] Putland at 189 [40] where GUMMOW and HEYDON JJ referred to Butler v Attorney-General of Victoria [1961] HCA 32; 106 CLR 268 [(picking up also what Lord Blackburn said in Garnett v Bradley [3] at 966), cited by Gummow and Heydon JJ in Putland at 189 [40]. at 275 and Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; 218 CLR 1 at 7 [14] and 13-14 [43]
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