What the Parliament can enact prospectively in the exercise of its legislative powers it can also enact retrospectively[1] Just as a Commonwealth law can validly provide that it is not intended to operate as an exhaustive or exclusive regulation of the subject matter so it may validly provide that it never was intended to so operate[2]. Indeed, as I understand the argument, this is not disputed.
The point of departure is reached when and only when the retrospective operation of the Commonwealth statute displaces an inconsistency or cause of inconsistency with a State law which has previously arisen. According to the argument, this is because the Commonwealth statute is attempting to give a valid operation to a State statute which was rendered inoperative by s.109. This analysis mis-states the legal operation of s.6A. It says nothing about the State Act; it amends the Commonwealth Act by altering its prospective and retrospective operation. In so doing, as we have seen, it removes the inconsistency with the State Act. And in removing the inconsistency, s.6A does not attempt to contradict the operation of s.109. What the statutory provision does is to eliminate the basis on which s.109 can operate.
The argument attributes to s.109 the character of a constitutional fetter on Commonwealth legislative power, inhibiting the Parliament from retrospectively amending a Commonwealth statute which is inconsistent with a State statute so as to remove the inconsistency. The argument misconceives the nature and effect of the section. In conjunction with covering cl.5 of the Constitution, the object of the section is to secure paramountcy of Commonwealth laws over conflicting State laws. It achieves this object by rendering the State law invalid "to the extent of the inconsistency" and no further. It is, of course, well settled that when the section renders a State law "invalid" the State law is inoperative. The State law is not repealed by the Commonwealth law; nor is it void ab initio.[3] This is made clear by Butler v. Attorney-General (Vict.)[4] There it was held that when Div. 2 of Pt II of the Re-establishment and Employment Act 1945 (Cth) ceased to be in force by effluxion of time in accordance with its terms, ss.4 and 10 of the Discharged Servicemen's Preference Act 1943 (Vict.) which had been held in Wenn to be invalid for inconsistency with the Re-establishment and Employment Act, thereupon came into operation, to the extent that they were unrepealed by the Victorian Parliament.[5]
Kitto J., after noting that the Commonwealth statute expired in 1955 and that the attempts to extend it were void and beyond power, observed (at p.278):
"The inconsistency with ss.4 and 10 of the Victorian Act then ceased, and the consequential invalidity of those sections, if still unrepealed by the Victorian legislature, necessarily ceased also. It was an invalidity resulting from the operation of covering cl.5 and s.109 of the Constitution. The invalid sections had not been repealed by the Commonwealth legislation; still less had they been rendered void ab initio. They
had been made by the Constitution to yield to the Commonwealth legislation, to 'remain in abeyance
unless and until' that legislation should be no longer law.[6]. One cannot read the judgments in Wenn's
Case[7] without seeing that the declaration of invalidity meant no more than this".
The foregoing discussion supports the fundamental proposition which I have already stated: that the object of s.109., no more and no less, is to establish the supremacy of Commonwealth law where there is a conflict between a Commonwealth and a State law. Where no such conflict arises or such a conflict is removed by subsequent retrospective Commonwealth legislation s.109 has no role to play - there is no problem which requires to be solved by an insistence on the supremacy of Commonwealth law[8].
‘The applicability of the State section, operating as Federal law under s 68, depends on the principles which determine whether a later law of the same Legislature has repealed an earlier one. Similar principles apply when general and special provisions in the same statute have to be reconciled. In a case of the latter kind, R v Wallis, Dixon J said at 549-550:
“Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
[1] R v. Kidman [1915] HCA 58; (1915) 20 CLR 425.
[2] Strickland v. Rocla Concrete Pipes Ltd. [1971] HCA 40; (1971) 124 CLR 468, at p 492)
[3] Carter v. Egg and Egg Pulp Marketing Board (Vict.) [1942] HCA 30; (1942) 66 CLR 557, at pp 573 599
[4] Butler v. Attorney-General (Vict.) [1961] HCA 32; (1961) 106 CLR 268
[5]THE UNIVERSITY OF WOLLONGONG v. MOHAMED NAGUIB FAWZI AHMED METWALLY and others [1984] HCA 74; (1984) 158 CLR 447 per MASON J
[6] cf. Attorney-General for Ontario v. Attorney-General for The Dominion (1896) A.C. 348, at p.367
[7] Wenn's Case (1948) 77 C.L.R. 84
[8] University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158 CLR 447 (22 November 1984) per MASON J
[9] North Stafford Steel Iron & Coal Co. (Burslem), Ltd v Ward (1868) LR 3 Ex 172, 177
[10] KELLY v SAADAT - TALAB [2008] NSWCA 213 (6 November 2008)
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