9 hours ago
Thursday, September 23, 2010
More Commentary on Dickson
I posted yesterday on the High Court decision in Dickson v The Queen [2010] HCA 30. In addition I would recommend taking a look at the interesting discussion at Quis Custodiet Ipsos Custodes and Don Mathias’s Blog, as well as an interesting comment to my post from Jeremy Gans.
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As affirmed in Dickson, the High Court has adopted the following test for identifying “direct inconsistency” for the purposes of s 109 of the Constitution:
ReplyDelete“When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.”
It seems to me the above test is flawed as it fails to take into account the following possibility.
Either expressly or by necessary implication, a Commonwealth law may evince an intention not to prevent the operation of State laws that deal with the same or a similar matter in a way that differs from the operation of the Commonwealth law.
Note that the intention referred to above is distinct from the related but separate intention not to “cover the field”. An intention not to “cover the field” gives no indication as to whether there is also an intention to allow State laws to operate in a way that differs from the operation of the Commonwealth law.
Momcilovic’s current appeal might present an opportunity for the High Court to modify the test for identifying “direct inconsistency” so that it becomes a two-part test.
The first part of the test would be to determine whether the involved State law, if valid, would appear to alter, impair or detract from the operation of a law of the Commonwealth Parliament.
If so, the second part of the test would need to be applied. That part of the test would be to determine whether the involved Commonwealth law evinces an intention to allow State laws to operate in the identified way.
Section 300.4 of the Commonwealth Criminal Code provides a good example of the relevant type of intention. It states:
“(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Part is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Part; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Part;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Part;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Part.”