Consideration
30 There is no dispute that the Governor-General made a valid declaration under s 475 and that the extensions of it under s 476 continued to apply. We reject the appellant's argument that the effect of the Governor-General's declaration was to enliven the Health Minister's powers under ss 477 and 478 of the Biosecurity Act to make determinations or give directions in a way that had the consequence of rendering inoperative all State laws under which the State Minister and the Secretary, respectively, made the order and determination under which her employment came to be terminated.
31 It was common ground before the primary judge and us that his Honour correctly identified the principles of construction to determine whether, for the purposes of s 109 of the Constitution, a law of a State is inconsistent with a law of the Commonwealth, as determined in Outback Ballooning 266 CLR at 446-448 [31]-[35]. In that case, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:
31 In Victoria v The Commonwealth ("The Kakariki") ((1937) 58 CLR 618 at 630), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing ((1999) 197 CLR 61 at 76-77 [28]), Dickson v The Queen ((2010) 241 CLR 491 at 502 [13]-[14]) and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd ((2011) 244 CLR 508 at 524 [39]).
32 The first approach has regard to when a State law would "alter, impair or detract from" the operation of the Commonwealth law. This effect is often referred to as a "direct inconsistency" (Dickson v The Queen (2010) 241 CLR 491 at 504 [22]; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [39]). Notions of "altering", "impairing" or "detracting from" the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law (Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 525 [41]).
33 The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say "completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed" (Ex parte McLean (1930) 43 CLR 472 at 483). This is usually referred to as an "indirect inconsistency". A Commonwealth law which expresses an intention of this kind is said to "cover the field" or, perhaps more accurately, to "cover the subject matter" with which it deals (Ex parte McLean (1930) 43 CLR 472 at 483; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [40]; see also The Commonwealth v Australian Capital Territory (2013) 250 CLR 441). A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law (The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 467 [56]).
34 The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.
35 It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter (Momcilovic v The Queen (2011) 245 CLR 1 at 116 [261]). It may state a rule of conduct to be observed, from which the relevant intention may be discerned (Ex parte McLean (1930) 43 CLR 472 at 483-484). Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered (R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563-564). A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended (See, eg, R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; New South Wales v The Commonwealth ("Hospital Benefits Case") (1983) 151 CLR 302). The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation (Momcilovic v The Queen (2011) 245 CLR 1 at 111 [244] per Gummow J).
32 In Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said:
In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:
"Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
33 Their Honours continued (at 388 [35]):
It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.
(emphasis added)
34 In Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [28], Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said, "[m]oreover, legislation 'must not be read in a spirit of mutilating narrowness'", citing Frankfurter J in United States v Hutcheson 312 US 219 (1941) at 235. Likewise, the converse of such a construction must apply also.
35 The appellant's contention that the words in parentheses in each sub-paragraph of s 8(2) of the Biosecurity Act identified, beyond the particular sections expressly stated, the whole of the fields which were excluded from the possibility of concurrent operation under s 8(1), ignored the text of the legislation itself. The Parliament identified in s 8(1) that it was not seeking, by the enactment of the Biosecurity Act, to exclude or limit the operation of laws of a State or Territory that were capable of operating concurrently and consistently with the Act, except in the particular respects referred to in s 8(2). Importantly, the chapeau to s 8(2) provided that s 8(1) was subject to the six specific sections of the Biosecurity Act identified in s 8(2), including ss 477(5) and 478(4).
36 The words in parentheses that followed each sub-paragraph in s 8(2) referred in a general way to the subject matter to which each particular provision related. However, s 8(2) made pellucid that each individual section referred to was the respective provision to which s 8(2) applied. As we noted above, s 172 dealt with the application of the whole of Pt 3 of Ch 3. That itself explains why, as a shorthand, s 8(2)(a) referred in brackets to "prohibited goods". Likewise, s 265 dealt with the whole of the provisions of Ch 5, that dealt generally with biosecurity risks associated with ballast water, other than in relation to the disposal of ballast water once lawfully removed from a ship.
37 As each of s 8(2)(a) and (b) identified, the Parliament expressly determined, for the purposes of s 8(1), that the whole of the subject matter of the respective Part or Chapter was enacted with the intention of excluding any inconsistent State or Territory law.
38 In contrast, s 8(2)(c) identified particular subsections in Pts 1 and 2 of Ch 8, that had a complementary effect, namely, first, ss 445(4) and 446(4) which dealt with determinations and directions made by the Agriculture Minister for the purposes of biosecurity emergencies and, secondly, more relevantly, ss 477(5) and 478(4). The latter two subsections expressed a pellucid legislative intention that a determination by the Health Minister for the purpose of a human biosecurity emergency under s 477(1), or a direction given by him or her under s 478(1), applied or could be made despite the provisions of any other Australian law and rendered such a law inoperative. The operation of those two provisions made clear that, only if and when the Health Minister exercised his or her discretion under ss 477(1) or 478(1) to make a determination or give a direction would the Biosecurity Act give primacy to the consequences provided for in the Act in respect of the operation and effect of any such determination or direction and correspondingly exclude the operation in that field of any inconsistent law of a State or Territory.
39 The imperative of obedience to the Commonwealth law is emphasised by s 479. That created an offence if a person disobeyed a determination or direction under ss 477(1) or 478(1). As a result, any State or Territory law that would otherwise have operated, including one creating an offence or imposing different requirements, would be inconsistent with the federal law for the purposes of s 109 of the Constitution and be rendered inoperable by force of ss 8(2)(c), 477(5) and 478(4) and the operation of the Commonwealth Act, read as a whole. It is evident that the intention of the Parliament in s 479, coupled with the ordinary and natural meaning of ss 477(1), (5), 478(1) and (4), that a person must obey the determination or direction made under the Commonwealth law and, if he or she does so, that conduct would be incapable of being found to contravene a State or Territory law.
40 A further indication of the limited nature of the exclusivity of a direction under s 478(1) is manifest in s 478(5), which provided that the Health Minister did not have power to give a direction under s 478(1) to an officer or employee of a State, Territory or State or Territory body, such as the appellant, unless the direction was in accordance with an agreement between the Commonwealth and the State, Territory or body.
41 Here there is no evidence of any direction under s 478(1), far less of any agreement that satisfied the condition in s 478(5), which is capable of affecting the position of the appellant. That, in itself, demonstrates that the appellant's case is hopeless, since the effect of the Secretary's determination under s 116A(1) of the Health Services Act and the appellant's employer's action was to deal with a subject matter that was not, according to the evidence, within the power of the Health Minister within the meaning of s 478(5). That was because the Health Minister could not make a direction that affected the powers of the Secretary to deal with any subject to do with the appellant's employment in the circumstances of this proceeding. This is because there was no relevant agreement between the Commonwealth and New South Wales or the appellant's employer, on the evidence, that could have enabled the Health Minister to give a direction under s 478(1) that could have applied to the appellant.
42 Reading s 478 as a whole, it can be seen that the Health Minister's power to give a direction under s 478(1) is limited by s 478(5) and cannot be exercised, let alone made exclusive under s 478(4), in an area withdrawn from his or her power because of the absence of any agreement with the State or a State body under s 478(5). This construction is consistent with the overview in the explanatory memorandum for the Bill that became the Biosecurity Act, which explained the Parliament's purpose in enacting Ch 8 as:
The emergency chapter will complement existing agreements and state and territory controls, allowing for efficient and effective emergency responses in state, territory and Commonwealth jurisdictions.
(emphasis added)
43 The appellant's argument would neuter such effective responses at the very time at which it might be necessary for the differing polities within the Commonwealth to formulate and tailor their own bespoke legislative and regulatory requirements to deal with a public health emergency: Spalvins 202 CLR at 644 [28]. The appellant advanced no rational purpose behind her proposed construction. As Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ held in DB Management 199 CLR at 388 [35], in construing a statute otherwise than in its natural and ordinary meaning, a party must advance some plausible formulation of an alternative legal meaning. We reject the appellant's meonic construction that, once the Governor-General made a declaration under s 475 that was in force, either under that section or as extended under s 476, somehow the States and Territories were neutered thereafter in taking any steps within the possible legislative field covered by Pt 2 of Ch 8 irrespective of whether the Health Minister actually exercised any of his powers under Pt 2 of Ch 8 of the Biosecurity Act. Such a construction would give no work for ss 477(5), 478(4) and or (5) to do and would defeat the obvious legislative intention in s 8 in providing that it is only where a determination has been made or a direction has been given under ss 477(1) and 478(1) that those sections apply despite any provision of any other Australian law.
44 The primary judge was correct to find that the appellant's construction of s 8 of the Biosecurity Act would be inimicable to the purposes and functions of the cooperative federal system if State and Territory authorities were prevented from implementing emergency responses because, somehow, the Commonwealth law had exclusive sway over the whole field. That construction makes no sense, has no reasonable basis and does not derive from the ordinary and natural meaning of ss 8, 477 or 478 of the Biosecurity Act. Sections 477(1) and 478(1) gave the Health Minister discretionary powers that he or she may or may not choose to exercise. It is only if and when he or she exercised the power in a particular respect that ss 477(5) and 478(4) were intended to ensure that that exercise of power rendered inoperative any inconsistent State or Territory law with respect to the same subject matter.