R v Winneke; Ex parte Gallagher

R v Winneke; Ex parte Gallagher - [1982] HCA 77 - HCA 1982 case summary — Zoe

[6]

The submission made on behalf of the applicants was that there was an inconsistency between the Commonwealth Act and the State Act, and that ss. 19 and 20 of the latter Act, in particular, were accordingly invalid to the extent of that inconsistency by reason of s. 109 of the Constitution. The inconsistency was said to arise in the operation of the two Acts - it was described as a factual inconsistency. The argument of the applicants can be summarized in this way: the Commonwealth Act is intended to make exclusive provision for the manner in which a Royal Commission, appointed under the authority of the Commonwealth, makes its inquiries. Further, the provisions of the Commonwealth Act and those of the State Act cannot both be applied to the same inquiry; there is a direct, textual, inconsistency between them. So far as is relevant to the present case, the alleged inconsistency lies in the fact that different penalties are provided for the same conduct. A refusal to answer a relevant question is an offence against the Commonwealth Act for which a penalty of $1,000 is provided: s. 6 of the Commonwealth Act. A refusal or failure to answer a question touching the subject-matter of the inquiry is an offence against the State Act which renders the offender liable to a penalty of $1,500 or imprisonment for a term of three months: ss. 19, 20 of the State Act. There are other differences between the two Acts which are not directly relevant to the present case. Under the Commonwealth Act, a witness who conscientiously objects to take an oath may make an affirmation: s. 4. Under the State Act, a person who objects to be sworn must, before he is permitted to make an affirmation, state as the ground of his objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief: s. 102 of the State Act. Further, under the Commonwealth Act, a witness is not obliged to disclose any secret process of manufacture: s. 6D. No similar provision is contained in the State Act.

[8]

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. The words of s. 109 make it plain that it deals only with inconsistency between laws. It does not deal with inconsistency between powers: O'Sullivan v. Noarlunga Meat Ltd. [2] . It does not deal directly with inconsistency between executive or judicial acts done under a power conferred by a federal law, on the one hand, and acts of that kind done under a State law, on the other hand. If a federal law validly confers a power which is intended to be exclusive, so that no one else can do the same thing, s. 109 directly operates, with the result that a State law conferring a power to do that thing would be invalid. However the federal law may reveal an intention that although the power which it confers is not exclusive, an exercise of that power will be exclusive; in that event, s. 109 will give paramountcy to the law under which the power is exercised, with the result that State law cannot validly operate once the power has been exercised. This was explained, in relation to awards, in Ex parte McLean [3] , by Dixon J. who said [4] : If the Act means not only to give the determinations of the arbitrator binding force between the disputants, but to enable him to prescribe completely or exhaustively what upon any subject in dispute shall be their industrial relations, then s. 109 would operate to give paramountcy to these provisions of the statute, unless they were ultra vires, and they in turn would give to the award an exclusive operation which might appear equivalent almost to paramountcy. The argument on behalf of the applicants in the present case was based on two cases in which this principle was discussed. In Victoria v. The Commonwealth [5] it was held that there was no inconsistency between a State Act which empowered a State authority to remove a ship sunk in Victorian waters, and a Commonwealth Act which made similar provision for the removal by a Commonwealth authority of a ship sunk on or near the coast of Australia. There is no necessary inconsistency in two authorities having power to remove the same wreck, and it was held that the power given to the Commonwealth authority was not intended to be exclusive. However, a conflict might have arisen if both authorities had simultaneously attempted to remove the wreck. The members of the Court expressed rather different views as to the outcome of such a situation, but it may be concluded that if the Commonwealth Act considered in that case had revealed an intention to make the exercise of the power by the Commonwealth authority exclusive, the effect of s. 109 would have been to give paramountcy to the Commonwealth law over the State law, and thus to render invalid the State law to the extent to which it authorized any action which would interfere with the exercise of power by the Commonwealth authority: see the discussion at pp. 626, 628, 630-631 and 635-637. Similarly, the fact that a Commonwealth statute and a State statute both authorized the acquisition of eggs would not necessarily mean that the Commonwealth statute excluded the operation of the State power, but if both the Commonwealth and the State sought to acquire the same eggs, there would be a conflict in the operation of the power, and in that case s. 109 would give paramountcy to the Commonwealth statute which would, no doubt, be construed as meaning that the Commonwealth power of acquisition was to supersede any attempted acquisition by the State authority: Carter v. Egg and Egg Pulp Marketing Board (Vict.) [6] . In cases such as this the first question is what is the meaning and effect of the Commonwealth law under which the power is exercised; only when the effect of a valid Commonwealth law has been determined, is it possible to consider whether a State law is inconsistent with it. 1. (1956) 95 C.L.R. 177, at p. 183. 2. (1930) 43 C.L.R. 472, at pp. 484-485. 3. (1930) 43 C.L.R., at p. 484. 4. (1937) 58 C.L.R. 618. 5. (1942) 66 C.L.R. 557, at pp. 574-576.

[10]

The applicants then rely on the alleged textual inconsistencies to which I have referred, and particularly on the fact that different penalties are provided by the two Acts if a witness refuses to answer a question. However, the fact that a Commonwealth Act and a State Act impose different penalties for the same conduct does not necessarily mean that the laws are inconsistent. If the two laws are made for the same purpose - e.g. if they prescribe substantially identical rules on a particular subject but with different penalties for contravention - it will be easy to conclude that the Commonwealth law covers the whole subject-matter, and that there is an inconsistency: see Hume v. Palmer [7] and Reg. v. Loewenthal; Ex parte Blacklock [8] . However, the two laws may deal with different subject matters, so that each may validly apply in relation to the same set of facts. Dixon J. gave an example of this in Ex parte McLean [9] , when he referred to the case of a shearer who unlawfully and maliciously wounded a sheep he was shearing and who might thereby commit an offence both against a Commonwealth award and against the State criminal law. In the present case the Commonwealth Act and the State Act deal with different subjects. The Commonwealth Act deals with inquiries conducted under Commonwealth authority and the State Act with inquiries conducted under State authority. The object of s. 6 of the Commonwealth Act is to render effectual an inquiry conducted under the authority of the Commonwealth, whereas the object of ss. 19 and 20 of the State Act is to render effectual an inquiry conducted under the authority of the State. If the two inquiries were separately conducted, and one question was relevant to both inquiries, that question might have been asked at each inquiry, and a refusal on both occasions would clearly have constituted two separate offences, one against Commonwealth law and one against State law. When the inquiries are held together, and a question relevant to both is asked, a refusal to answer constitutes a contravention of both Acts, so that the offender might be prosecuted and convicted under either the State Act or the Commonwealth Act: see s. 11 of the Crimes Act 1914 Cth, as amended. However, the injustice of exposing the witness to double punishment for the one refusal is avoided by s. 30(2) of the Acts Interpretation Act 1901 Cth, as amended, whose effect is that once the witness has been punished under the State Act he is not liable to be punished again under the Commonwealth Act. In a sense a witness who intends to persist in a refusal is better off when a conjoint inquiry is held than if two separate inquiries are held, for in the latter case if he refused to answer on both occasions he would be liable to be punished for two offences. The different penalties provided by the two Acts are in respect of what are in truth independent offences which are created by law to serve different purposes. It is not right to say that the Acts provide different penalties for the one offence. There is no inconsistency between Acts which prescribe different penalties for offences which, albeit constituted by the same conduct, are in substance different from one another.

[67]

As I have said, the complaints of the applicants flow from the fact that the Commissioner fulfilled the apparent intention of each of the Commissions by proceeding to combine his functions in a single inquiry. The argument is that this has given rise to a special kind of inconsistency attracting the operation of s. 109 of the Constitution. It is not a case of a textual collision between the provisions of the Commonwealth Act and the State Act, nor is it a case where the Commonwealth Act manifests the intention of the Parliament that its law should cover the field as the exclusive law on the general topic with which it deals (cf. Miller v. Miller [24] , per Barwick C.J.). It is a case of what Mr. Berkeley describes as factual or latent inconsistency, an inconsistency which arises from the operation of the two laws in particular circumstances. He refers to Victoria v. The Commonwealth [25] , and to Carter v. Egg and Egg Pulp Marketing Board (Vict.) [26] as cases which provide examples of this kind of inconsistency. In each of those cases the Court envisaged that inconsistency within the meaning of s. 109 would arise if the powers conferred by the Commonwealth and State Acts respectively were each exercised inconsistently with respect to the same property. In the former case, the property in question was a wreck; in the latter case, it was eggs. In the same way, so it is argued, inconsistency in operation arises when the Commissioner asks a question which the witness fails to answer. The question is asked by the Commissioner in exercise of the authority flowing from both Commissions. When the question is asked, there is then a dual sanction operating on the witness: in the case of the Commonwealth Act, the penalty for failing to answer a proper question is a fine not exceeding $1,000 (s. 6); in the case of the State Act, the penalty is a fine not exceeding $1,500 or imprisonment not exceeding three months. Such a circumstance must be contrary to the intention of the Commonwealth Act, it having prescribed a single penalty consisting of a fine as the sanction to compel a witness to answer a question put to him by a Commonwealth Commissioner. There is only one question, and it cannot shed its character as a "Commonwealth" question, notwithstanding that it may at the same time bear the character of a "State" question.

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