Notion of Contrariety
Further illumination of the notion of contrariety is given by the clarity of the passage from the reasons in Butler v Attorney-General In Butler v Attorney-General it was said at 275-276:
“The books contain, of course, plenty of examples of an implied repeal – total or partial – of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. The classical statement on the subject is, I think, to be found in the opinion of Lord Blackburn in Garnett v. Bradley... . After calling attention to the generally unsatisfactory nature of the authorities, his Lordship said: "I shall not attempt to recite all the contrarieties which make one statute inconsistent with another; the contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmative words used in the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v. Morgan..., such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together; the second repeals the first" ... .
It should be pointed out in this connexion that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s. 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant[1].
(Footnotes omitted.)
‘The clarity required for such contrariety and the rarity of implied repeal, reflected upon by Fullagar J in Butler v A-G were referred to in Dossett v TKJ Nominees Pty Limited [2]. As was pointed out in Dossett at 14 [43], the passage of FULLAGAR J in Butler v Attorney-General at 275 has been applied on a number of occasions by the High Court.[3]
This notion of contrariety encompasses not only the circumstance where “a Commonwealth law expressly or by implication made a contrary provision” to the State law to be picked up – the putative surrogate federal law [4] but also where “there [was] a Commonwealth legislative scheme relating to the [relevant subject matter] which was ‘complete upon its face’ and can ‘be seen to have left no room’ for the operation of [the section to be picked up]”[5].
Further it was stated that:’ To put the matter in the relevant statutory context here, would picking up the State law (the Mental Health (Criminal Procedure) Act 1990 (NSW), s 32) derogate from and effectively impliedly repeal all or any part of the Commonwealth law (the Crimes Act 1914 (Cth), s 20BQ) or is the Crimes Act, s 20BQ complete upon its face leaving no room for operation of the law to be picked-up?’ These two ways of putting the matter can be seen to be intimately related. If the Commonwealth law is complete upon its face leaving no room for the operation of a surrogate federal law, that is so because part of the content of the existing Commonwealth law is a negation of additional statutory content on the subject. If a State law to be picked up as surrogate federal law would add statutory content to the subject, there would be an implied repeal of the negation of additional content present within the Commonwealth Act.[6]’
It concedes that the Constitution may invalidate a State law that restricts, without justification, a political communication concerning the functioning of representative and responsible government at federal level. That element of the concession was properly made[7]. In Levy v Victoria, I pointed out that "no Commonwealth or State law can validly impair the freedom of communication that the Constitution protects"[8] "When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively 'the system of government prescribed by the Constitution'). If the first question is answered 'yes' and the second is answered 'no', the law is invalid.[9]" (footnotes omitted)
[1] Butler v Attorney-General In Butler v Attorney-General [supra] Per FULLAGAR J
[2] Dossett v TKJ Nominees Pty Limited [2003] HCA 69; 218 CLR 1 at 7 [14] per McHUGH J and at 13-14 per GUMMOW, HAYNE and HEYDON JJ
[3] South Australia v Tanner [1989] HCA 3; 166 CLR 161 at 171 (per Wilson, Dawson, Toohey and Gaudron JJ); Saraswati v The Queen [1991] HCA 21; 172 CLR 1 at 17 (per Gaudron J); Kartinyeri v Commonwealth [1998] HCA 52; 195 CLR 337 at 375 (per Gummow and Hayne JJ); and Shergold v Tanner [2002] HCA 19; 209 CLR 126 at 136-137 (per Gleeson CJ and McHugh, Gummow, Kirby and Hayne JJ, citing Gaudron J in Saraswati at 17).
[4] see Putland at 179 [7], per GLEESON CJ
[5] Putland at 179-180 [7], per GLEESON CJ
[6] KELLY v SAADAT - TALAB [2008] NSWCA 213 (6 November 2008) Supreme Court of New South Wales - Court of Appeal per ALLSOP P
[7] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567
[8] [1997] HCA 31; (1997) 189 CLR 579 at 622
[9] Lange [supra]
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