//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1984] HCA 74
High Court of Australia
1983-11-23
Dawson JJ
Original judgment source is linked above.
High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. University Of Wollongong v Metwally [1984] HCA 74
Whether the enactment of the provisions of s. 3 of the Racial Discrimination Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for reason that in purporting to do so they deny the operation of s. 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the relevant provisions of the Anti-Discrimination Act 1977.
Whether, in the event of an affirmative answer to (i) above, the provisions of Pt II of the Anti-Discrimination Act were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of s. 109 of the Constitution.
Answer: The provisions of Pt II of the Anti-Discrimination Act 1977 N.S.W. were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 Cth by virtue of their inconsistency with the Racial Discrimination Act 1975 Cth and the operation of s. 109 of the Constitution, and the enactment of the Racial Discrimination Amendment Act 1983 did not give those provisions a valid operation prior to the date of that enactment.
Declare that the Tribunal had no power or jurisdiction to inquire into or make decisions or orders in respect of either of the complaints lodged by Mr. Metwally against the University of Wollongong. Costs of the appellant and the respondent Metwally to be borne equally by the respondent Attorney-Generals.
Mr. Metwally, who is an Egyptian, commenced study at the University of Wollongong in May 1978 under a postgraduate scholarship awarded by the University. He was enrolled for the degree of Doctor of Philosophy in the Department of Metallurgy. In March 1981, while still so enrolled, he lodged with the Counsellor of Equal Opportunity appointed under the Anti-Discrimination Act 1977 N.S.W., as amended, ("the Anti-Discrimination Act ") a complaint that the University had discriminated against him on the ground of his race. The complaint was based on ss. 7(1) and 17(2) of the Anti-Discrimination Act. In September 1981 the University terminated Mr. Metwally's enrolment and his scholarship. In February 1982 he lodged with the Counsellor a complaint under s. 50(1) of the Anti-Discrimination Act which alleged that he had been victimized by the University because he had lodged the earlier complaint of racial discrimination. The two complaints eventually came before the Tribunal established under the Anti-Discrimination Act. After a protracted hearing, the Tribunal delivered a judgment on 23 November 1983. It found both complaints to be established, and ordered the University to pay to Mr. Metwally damages totalling $46,500 and directed the University to provide him with a letter containing details of the research work which he had done and stating that the work represented substantially the whole of the experimental work of the prescribed research program for the degree of Doctor of Philosophy. The University appealed against this decision to the Court of Appeal of the Supreme Court of New South Wales on a number of grounds which imputed various errors of fact and law to the Tribunal. Mr. Metwally cross-appealed on the ground that the damages were manifestly inadequate.
On 19 May 1983 this Court held, in Viskauskas v. Niland [1] that the provisions of Pt II of the Anti-Discrimination Act (which deal with racial discrimination and include ss. 7 and 17) were inconsistent with the Racial Discrimination Act 1975 Cth ("the Commonwealth Act") and were to that extent invalid. It follows from that decision that during the years 1978-1981, when the alleged acts of racial discrimination occurred, Pt II of the Anti-Discrimination Act was invalid. However, shortly after the decision in Viskauskas v. Niland was given, the Commonwealth Act was amended by the Racial Discrimination Amendment Act 1983 Cth ("the Amendment Act") which came into force on 19 June 1983. By s. 3 of that Act a new section, s. 6A, was inserted in the Commonwealth Act; it provides as follows:
(1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which he would, but for this sub-section, have been entitled to make a complaint under this Act,
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this sub-section, terminated.
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act,
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this sub-section renders a person liable to be punished more than once in respect of the same act or omission.
Ground 36 of the University's notice of appeal is in the following terms:
That because Section 3 of the Racial Discrimination Amendment Act 1983 Cth is invalid in so far as it purports to have any retrospective operation or effect the Tribunal had no power or jurisdiction to inquire into and make decisions and orders in respect of either of the Respondent's complaints. The Court of Appeal ordered that the Attorney-Generals of the Commonwealth and the State of New South Wales be made respondents to the appeal in respect of that ground of the appeal.
On the application of the Attorney-General for New South Wales this Court ordered that there be removed into this Court that part of the cause which raises the following questions:
(i) Whether the enactment of the provisions of s. 3 of the Racial Discrimination Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for reason that in purporting to do so they deny the operation of s. 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the relevant provisions of the Anti-Discrimination Act 1977.
(ii) Whether, in the event of an affirmative answer to (i) above, the provisions of Pt II of the Anti-Discrimination Act were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of s. 109 of the Constitution.
The second of these questions was hardly necessary in the light of Viskauskas v. Niland. Although the actual decision in that case was that s. 19 of the Anti-Discrimination Act was invalid, it necessarily followed from the reasoning which led to the invalidation of that section, and the Court expressly held, that the provisions of Pt II of that Act were invalid. The questions as framed do not refer to s. 50 of the Anti-Discrimination Act, which appears in Pt V of that Act, but, as the parties agreed, it is clearly convenient to decide the question whether, if the Tribunal had no jurisdiction to entertain the complaint under Pt II, it nevertheless had jurisdiction to entertain that under s. 50.
I may state briefly, in my own words, the gist of the arguments put on behalf of the various respondents, as follows: Pt II of the Anti-Discrimination Act was inconsistent with the Commonwealth Act because the latter was intended to be a complete statement of the law of Australia with regard to racial discrimination. However, the Amendment Act shows, retrospectively, that the intention of the Parliament was not to deal exclusively and exhaustively with that subject, and was not to exclude the operation of the State law. The power of the Commonwealth to legislate retrospectively includes a power to declare that an Act of the Parliament has, and always had, a meaning different from that formerly attached to it. The amendment to the Commonwealth Act removed the source of the inconsistency and the Anti-Discrimination Act retrospectively came into operation from the date of its enactment.
Assuming that the respondents' arguments were in other respects correct, it would be necessary for Mr. Metwally to overcome two possible difficulties before he could succeed in the present case. In the first place, the Commonwealth Act, as amended, shows that the intention not to exclude or limit the operation of a law of a State exists only in relation to a State law "that furthers the objects of the Convention and is capable of operating concurrently with this Act". The Convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination, to which it was the intention of the Commonwealth Act to give effect. The Amendment Act will not assist Mr. Metwally, unless it can be held that the Anti-Discrimination Act is an Act that furthers the objects of the Convention and is capable of operating concurrently with the Commonwealth Act. Secondly, it was said in Viskauskas v. Niland [2] that the Commonwealth Parliament "can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law." If the Amendment Act brought about the result that the Commonwealth Act operated unequally throughout the Commonwealth - and whether it did so might depend not only on the law of New South Wales but on that of other States and Territories as well - the consequence might be either that the Amendment Act would be invalid or that the entire Commonwealth Act would be invalidated, although if either of those consequences were to ensue, the former would be more likely than the latter. These questions were not argued before us because those States which had not intervened had not been given an opportunity to be heard in relation to them. It is therefore necessary to proceed on the assumption that the Anti-Discrimination Act is a law that furthers the objects of the Convention and is capable of operating concurrently with the Commonwealth Act, and that the Amendment Act does not give the Commonwealth Act an unequal or discriminatory application throughout the Commonwealth, or that, if it does, it is not for that reason invalid, without deciding whether those assumptions are correctly made.
When a law of a State is inconsistent with a law of the Commonwealth and becomes, to the extent of the inconsistency, invalid, the invalidity is brought about by s. 109 of the Constitution and not directly by the law of the Commonwealth: see Federated Saw Mill &c. Employés of Australasia v. James Moore & Son Pty. Ltd. [3] ; Wenn v. Attorney-General (Vict.) [4] ; Reg. v. Railways Appeals Board (N.S.W.); Ex parte Davis [5] . The Commonwealth Parliament cannot enact a law which would affect the operation of s. 109, either by declaring that a State law, although not inconsistent with any Commonwealth law, shall be invalid, or that a State law which is inconsistent with a Commonwealth law shall be valid. If there were a direct conflict between a Commonwealth law and a State law as, for example, where one law forbids what the other commands, or one takes away a right which the other confers, an assertion in the Commonwealth law that it was not intended to be inconsistent with the State law would be meaningless and ineffective. However, when there is no direct inconsistency between the two laws, the question is whether the State law is inconsistent with the Commonwealth law because the latter intends to cover the subject-matter with which the State law deals, and an indication in the Commonwealth law of the intention of the Parliament in that regard would be material and in most cases decisive: see the discussion by Mason J. in Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [6] and Palmdale-A.G.C.I. Ltd. v. Workers' Compensation Commission (N.S.W.) [7] . It is perhaps possible to imagine a case in which a Commonwealth Act did in truth fully cover the whole field with which it dealt, notwithstanding that it said that it was not intended to do so, but such a case may be left for consideration until it arises.
It is said in Butler v. Attorney-General (Vict.) [8] that invalid in s. 109 of the Constitution means, not void, but "inoperative", so that if a State law, which was inconsistent with a law of the Commonwealth, was not repealed by the State legislature and remained on the statute book, the expiration or repeal of the Commonwealth law would have the result that the State law would come into force; in those circumstances the State law would have remained in abeyance during the time when the inconsistency existed and, when the inconsistency no longer existed, would cease to be inoperative [9] . It follows that if a Commonwealth statute which, on its proper construction, had revealed an intention to cover exclusively and exhaustively the subject-matter with which it dealt, so that in consequence a State statute dealing with the same subject-matter was rendered inoperative, were subsequently amended in such a way as to manifest an intention that it was not intended to exclude the operation of the State law, the operation of the State statute would thereupon revive. There is therefore no reason to doubt (assuming the correctness of the assumptions to which I have referred) that after 19 June 1983, when the Amendment Act came into force, the Anti-Discrimination Act again became operative in New South Wales.
It was submitted that since the Commonwealth Parliament has power to make its enactments retrospective, it could retrospectively amend the Commonwealth Act, so as to indicate an intention not to exclude the operation of the State law, and thereby cause the Anti-Discrimination Act to have a valid operation from its inception, notwithstanding that in truth it was inconsistent with the Commonwealth Act at all times before the Amendment Act was passed. The acceptance of this argument would mean that the Commonwealth Parliament could enact a law which would retrospectively deprive s. 109 of the Constitution of its operation. If, at a particular time, a State law was inconsistent with a law of the Commonwealth, s. 109, applied at that time, would have resulted in the invalidity of the State law. If, on the other hand, the State law was not inconsistent with that law of the Commonwealth, s. 109 would not render it invalid. If the respondents' argument were correct, the Commonwealth Parliament could retrospectively reveal that the Commonwealth law had an intention, which it lacked at the earlier time, either to cover, or not to cover, the whole field, with the result that the State law would be retrospectively invalidated or validated. In other words, the Commonwealth law itself could vary the effect which s. 109 had produced at the relevant time; it could give to a State law a valid operation as at a time when s. 109 had rendered it invalid. But Commonwealth statutes cannot prevail over the Constitution. The deeming provisions in sub-ss. (1) and (2) of s. 6A do not state the effect which the Anti-Discrimination Act in truth had before the Amendment Act was passed; what they do is to create a "statutory fiction", to use the well-known words to which reference was made by Windeyer J. in Hunter Douglas Australia Pty. Ltd. v. Perma Blinds [10] . Before the Amendment Act came into effect, the Commonwealth Act, on its proper construction, was intended to be a complete and exclusive statement of the law of Australia with regard to racial discrimination, and Pt II of the Anti-Discrimination Act was inconsistent with that law and therefore invalid by force of s. 109. What the Amendment Act in effect provides is that the Commonwealth Act should now be understood as though it did not have that intention and that Pt II of the Anti-Discrimination Act was therefore not inconsistent with it. In other words, the Parliament has attempted to exclude the operation of s. 109 by means of a fiction. The short answer to the submissions of the respondents is that the Parliament cannot exclude the operation of s. 109 by providing that the intention of the Parliament shall be deemed to have been different from what it actually was and that what was in truth an inconsistency shall be deemed to have not existed. Section 109 deals with "a matter of prime importance" in the constitutional framework (seeButler v. Attorney-General (Vict.) [11] ), namely the effect of an inconsistency between the enactments of two legislatures both of which operate in the same territory. Its provisions are not only critical in adjusting the relations between the legislatures of the Commonwealth and the States, but of great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe. With all respect, I do not agree with the remark of Evatt J. in Victoria v. The Commonwealth [12] , that the section does "no more than declare a rule of last resort". If there is an inconsistency between a law of a State and a law of the Commonwealth there is no other rule than that laid down by s. 109 by which the inconsistency may be resolved. In the present case, since an inconsistency in fact existed, the provisions of s. 109 were called into play and their effect cannot later be excluded by retrospectively declaring that the truth was other than it was.
For these reasons I hold that Pt II of the Anti-Discrimination Act was inoperative at the time when the alleged discrimination against Mr. Metwally occurred.
There remains the question whether the complaint against the University under s. 50 of the Anti-Discrimination Act can be sustained. Section 50(1) provides:
It is unlawful for a person ("the discriminator") to subject another person ("the person victimized") to any detriment in any circumstances on the ground that the person victimized has -
(a) brought proceedings against the discriminator or any other person under this Act;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimized intends to do any of those things, or suspects that the person victimized has done, or intends to do, any of them.
In the present case, the Tribunal held that Mr. Metwally was entitled to succeed under both pars. (a) and (c) of that subsection. The terms of those provisions show that they deal with the case in which a person has been victimized because he brought proceedings under the Act or because he alleged the commission of an act which would amount to a contravention of the Act. The discrimination which Mr. Metwally alleged could not amount to a contravention of the Act because the sections allegedly contravened were not in force - clearly par. (c) does not apply. The proceedings brought against the University were based on a complaint which was purported to have been made under s. 88 of the Anti-Discrimination Act and which was referred to the Tribunal under s. 91(2) of that Act. Although the proceedings before the Tribunal purported to have been brought under the Act the basis on which they rested - a complaint of a contravention of the Act - did not exist. They could not properly be described as proceedings under the Act within par. (a). It is clear that s. 50 is ancillary to the earlier provisions of the Act. In so far as it is ancillary to Pt II it could, in my opinion, have no operation at a time when Pt II was inoperative; if it did apply in those circumstances it would have encroached on the field exclusively occupied by the Commonwealth and to that extent would have been invalid.
The questions are not felicitously phrased. I do not find it necessary to answer question (i). I would answer question (ii) as follows:
The provisions of Pt II of the Anti-Discrimination Act 1977 N.S.W. were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 Cth by virtue of their inconsistency with the Racial Discrimination Act 1975 Cth and the operation of s. 109 of the Constitution, and the enactment of the Racial Discrimination Amendment Act 1983 did not give those provisions a valid operation prior to the date of that enactment.
I would further declare that the Tribunal had no power or jurisdiction to inquire into or make decisions or orders in respect of either of the complaints lodged by Mr. Metwally against the University of Wollongong.
This judgment has been written on the footing that it is to be read in conjunction with the facts, the relevant legislative provisions and the questions as they have been stated in the judgment of Gibbs C.J.
In Viskauskas v. Niland [13] we held that s. 19 of the State Act, making racial discrimination in relation to the provision of goods and services unlawful, and other provisions to the extent to which they relate to s. 19 and to complaints for breaches of that section were inconsistent with the Commonwealth Act and to that extent were invalid by reason of s. 109 of the Constitution. The basis of our decision was that the Commonwealth Act manifested an intention to occupy the relevant field to the exclusion of any other law. We indicated, without deciding, that we considered that the whole of Pt II of the State Act, dealing with racial discrimination, was inconsistent with the Commonwealth Act.
The subsequent amendment of the Commonwealth Act which inserted s. 6A was designed to enable the Commonwealth Act and the State Act to operate side by side. It sought to achieve this result by specifically providing in s. 6A that the Commonwealth Act:
is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
It is not in issue, for the purposes of determining the questions before us, that s. 6A is valid and effective to achieve the concurrent operation of both Acts. What the University denies is that s. 6A is valid and effective to bring about a retrospective concurrent operation.
The source of this suggested invalidity is s. 109 of the Constitution. Although the object of this section is to secure the paramountcy of Commonwealth laws over inconsistent State laws, the effect of the section, like that of other provisions of the Constitution, is to inhibit the Commonwealth Parliament from enacting contradictory legislation. The Parliament could not, for example, either prospectively or retrospectively provide that a State law which was inconsistent with a Commonwealth law should have, or have had, full force and effect, notwithstanding that inconsistency. This is because the invalidity of the inconsistent State law is brought about by the operation of s. 109; the Commonwealth law does not operate of its own inherent force to invalidate the State enactment: Wenn v. Attorney-General (Vict.) [14] ; Reg. v. Railways Appeals Board (N.S.W.); Ex parte Davis [15] ; Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [16] .
But there is no objection to the enactment of Commonwealth legislation whose effect is not to contradict s. 109 of the Constitution but to remove the inconsistency which attracts the operation of that section. So, where inconsistency between Commonwealth and State laws arises, as it did in Viskauskas, because the Commonwealth law, according to its true construction, is intended to regulate the subject-matter exhaustively or exclusively, the Commonwealth Parliament may legislate to remove that inconsistency by providing that the Commonwealth law is not intended to regulate the subjectmatter exhaustively or exclusively, thereby opening the way to the concurrent operation of a State law on the subject-matter. It is, of course, well settled that: "a Commonwealth statute may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals thereby enabling State laws, not in direct conflict with a Commonwealth law, to have an operation": Palmdale-A.G.C.I. Ltd. v. Workers' Compensation Commission (N.S.W.) [17] .
What the Parliament can enact prospectively in the exercise of its legislative powers it can also enact retrospectively: R. v. Kidman [18] . 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: Strickland v. Rocla Concrete Pipes Ltd. [19] . 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: Carter v. Egg and Egg Pulp Marketing Board (Vict.) [20] .
This is made clear by Butler v. Attorney-General (Vict.) [21] . 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.
Kitto J., after noting that the Commonwealth statute expired in 1955 and that the attempts to extend it were void and beyond power, observed [22] :
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: cf. Attorney-General (Ontario) v. Attorney-General (Canada) [23] . One cannot read the judgments in Wenn's Case [24] without seeing that the declaration of invalidity meant no more than this. To the same effect were the comments of Taylor J. [25] . His Honour expressed the view that the words "to the extent of the inconsistency" must be taken "to have a temporal as well as a substantive connotation" [26] . By this he meant that: The Federal Act can "prevail" only whilst it remains in force and invalidity of the State Act is produced only as the counterpart of the "supremacy" of the Federal Act. The consequence is that if the federal Act is repealed with retrospective effect then the basis of invalidity of the State law is eliminated. 1. (1961) 106 C.L.R., at p. 278. 2. [1896] A.C. 348, at p. 367. 3. (1948) 77 C.L.R. 84. 4. (1961) 106 C.L.R., at pp. 282-283. 5. (1961) 106 C.L.R., at p. 283.
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 law 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.
The section is not a source of individual rights and immunities except in so far as individual rights and immunities are necessarily affected because the section renders inoperative a State law which is inconsistent with a Commonwealth law. Nor is the section a source of protection to the individual against the unfairness and injustice of a retrospective law. That is a matter which lies quite outside the focus of the provision. In these circumstances to distil from s. 109 an unexpressed fetter upon Commonwealth legislative power is to twist the section from its true meaning and stand it upon its head.
Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency. In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time: see e.g. Co-operative Committee on Japanese Canadians v. Attorney-General (Canada) [27] , a decision on s. 2 of the Colonial Laws Validity Act 1865 Imp.. And in a federal context, where the conflict is between a statute of the federal legislature and a statute of a State or provincial legislature, the conflict is resolved in favour of the primacy of the federal statute, even in the absence of a provision such as s. 109. This is the position in Canada (Laskin's Canadian Constitutional Law, 4th ed. (1975), pp. 23 et seq.) and in the United States: Willoughby on the Constitution of the United States (1929), vol. 1, ch. IV; Hines v. Davidowtiz [28] . In Victoria v. The Commonwealth [29] , Evatt J. observed: "[A]s is shown by decisions on the Canadian Constitution, provisions like s. 109 do no more than declare a rule of last resort which would be applied irrespective of express provision." This was the view which had been taken by Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 939. And it has recently been indorsed by Murphy J. in Australian Broadcasting Commission v. Industrial Court (S.A.) [30] .
Whether Evatt J.'s comment is correct is perhaps open to question in one respect. Generally speaking, "inconsistency" and "repugnancy" are interchangeable terms: see, e.g. Attorney-General (Q.) v. Attorney-General (Cth) [31] . Although there is authority for the proposition that the terms can be used interchangeably in relation to s. 109 (Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [32] ; Clyde Engineering Co. Ltd. v. Cowburn [33] ), in Ffrost v. Stevenson [34] , Dixon J., citing Union Steamship, observed, "It may be that the test of repugnancy under s. 2 of the Colonial Laws Validity Act 1865 is not the same as the test of consistency under s. 109." For present purposes it is quite unnecessary to resolve this question.
It is significant that a conflict between a Commonwealth law and a Territory law, which is unaffected by the provisions of s. 109, is resolved in favour of the primacy of the Commonwealth law by reference to the same doctrine of inconsistency: Federal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. [35] ; Webster v. McIntosh [36] ; Reg. v. Kearney; Ex parte Japanangka [37] . The comment made by Brennan J. [36] in the lastmentioned case that "It is beyond the capacity of a law of the Northern Territory to affect the operation of a law of the Commonwealth or to destroy or to detract from a right thereby conferred" echoes the observations of Dixon J. in Stock Motor Ploughs Ltd. v. Forsyth [38] , when, speaking of s. 109, he said that inconsistency will result if a State law varies, impairs or detracts from the operation of a law of the Commonwealth.
The important point is that when s. 109 refers to inconsistency it looks to a well-established concept, subject to the possible qualification already mentioned, and does no more than provide explicitly that in this situation of conflict the Commonwealth law is to prevail to the extent of the inconsistency, the solution which, as Evatt J. noted, has been reached elsewhere in the absence of such a provision.
Although in argument much was made of Windeyer J.'s description of some "deeming" provisions, of which s. 6A is an illustration, as involving a "statutory fiction" in Hunter Douglas Australia Pty. Ltd. v. Perma Blinds [39] , it is a notion which merely contributes another dimension of confusion to the question now under discussion. As his Honour pointed out, it is a convenient drafting technique for reducing the verbiage of an enactment, its effect being to prescribe the way in which a matter is to be adjudged. Generally speaking, no special legal consequences flow from Parliament's use of a deeming provision which involves a statutory fiction, though particular problems do arise in connection with statutory definitions: see Muller v. Dalgety & Co. Ltd. [40] . It is because Parliament is sovereign and its legislative powers are plenary that there is no general objection to the enactment of laws which provide for a statutory fiction. It is not a ground of invalidity unless the provision takes the form of a provision to oust the jurisdiction of the court to determine constitutional facts on which the exercise of legislative power may depend: Australian Communist Party v. The Commonwealth [41] . Here, of course, the question of inconsistency is one of law, requiring an ascertainment of the Commonwealth legislative intention for which s. 6A makes specific provision.
Instead of employing the "deeming" technique, Parliament might have (a) expressed s. 6A in different terms, stating that the Act never was intended to have an exhaustive or exclusive operation, or (b) repealed the principal Act and replaced it with a new Act, expressed to have full force and effect from the date of commencement of the principal Act, containing a provision negativing its exhaustive or exclusive operation. It can scarcely be suggested that for the purposes of s. 109 a distinction should be drawn between s. 6A and the techniques in (a) and (b). In each case, what was law at a given time has been altered. It is possible, I suppose, to say that in one sense the new law involves a fiction because it proceeds on the footing that the law as presently declared always was the law. But as a matter of both legal theory and legal reality, springing from the basic doctrine of parliamentary sovereignty, it is unquestionably correct to say that Parliament may proclaim that the law as presently declared always was the law. Indeed, it is instructive to recall that the common law rule was that if an Act expired or was repealed it was regarded, in the absence of provision to the contrary, as having never existed except as to matters and transactions past and closed: Surtees v. Ellison [42] ; Churchill v. Crease [43] ; Simpson v. Ready [44] .
It is in this setting of fundamental common law principle and doctrine that s. 109 finds its place in the Constitution. It seems scarcely necessary to add the comment that there is not the faintest hint of any suggestion in its provisions that it is concerned to draw any distinction between laws which provide for a statutory fiction and those that do not or between laws that are retrospective and those that are prospective.
In conclusion it should be noted that the ramifications of the University's argument travel beyond the confines of this case. Here the existence of inconsistency and the invalidity of the State Act was established by the decision in Viskauskas. But the proposition which is advanced is not limited to inconsistency established by judicial decision; it extends to any case of inconsistency which would bring s. 109 into operation whether previously found by judicial decision or not. So that Commonwealth legislation which retrospectively repeals or reduces the ambit of operation of an earlier Commonwealth law may founder on a supposed constitutional fetter which finds no expression in s. 109, notwithstanding the absence of inconsistency previously established by judicial decision.
In view of the conclusion which I have reached on the principal question argued, I have no need to consider the argument relating to s. 50 of the State Act.
In 1981 and 1982, Mr. Metwally lodged with the Counsellor of Equal Opportunity under the Anti-Discrimination Act 1977 N.S.W. ("the State Act") complaints of racial discrimination between May 1978 and September 1981 by the University of Wollongong. These were determined in his favour by the Equal Opportunity Tribunal which found that Mr. Metwally, a postgraduate student, was subjected to racial discrimination, and that the University Council's decision to terminate Mr. Metwally's Doctor of Philosophy scholarship and candidature constituted unlawful victimization. The Tribunal ordered the University to pay Mr. Metwally damages. The University appealed to the Court of Appeal of New South Wales and Mr. Metwally cross-appealed. The University's grounds of appeal included that s. 3 of the Racial Discrimination Amendment Act 1983 ("the Amendment Act") was invalid in purporting to have any retrospective operation and effect. The question of the validity of s. 3 was removed into the High Court.
The Amendment Act was passed after this Court in Viskauskas v. Niland [45] ("the Viskauskas Case") held that Pt II of the State Act was inconsistent with the Racial Discrimination Act 1975 ("the Racial Discrimination Act ") and that s. 19 of the State Act, and other provisions of the State Act to the extent to which they related to s. 19 and to complaints for a breach of s. 19, were rendered invalid by s. 109 of the Constitution. The Amendment Act purported, among other things, to state retrospectively, as well as prospectively, that Parliament did not intend to prevent the operation of any State Act that "furthers the objects of the Convention [that is the International Convention on the Elimination of All Forms of Racial Discrimination] and is capable of operating concurrently with" the Racial Discrimination Act, as amended.
Validity of the Amendment Act is presumed. In this proceeding, the only question of validity is concerned with s. 109 of the Constitution. The real question is the validity of parts of the State Act during the period 1977-1983.
Our legal system is based on the principle that there cannot be inconsistent laws. This principle operates at federal and State levels and whatever the source of law (constitutional, legislative, delegated legislative or decisional (common) law). If these laws would produce an inconsistency, then one prevails; the other or others are not law, and are often described as invalid or inoperative. The supremacy between what would otherwise be inconsistent laws is resolved in a number of ways. For example, where two laws emanate from one legislature, the later prevails. Where they emanate from different legislatures, constitutional law provides that one is superior, and its law will prevail. In Australian constitutional law, there are two general supremacy clauses, one in the covering clauses of the Commonwealth of Australia Constitution Act (s. 5) and the other in the Constitution proper (s. 109). Another limited clause is s. 105A (agreements with respect to State debts). Section 106 subjects State constitutions to the Constitution; s. 108 similarly subjects State laws to it.
The binding federal law includes not only the express words but also the common law of the Constitution, i.e. the implications and silent principles (recognized in the decided cases), such as separation of judicial from other powers (see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [46] ) or responsible government: see The Commonwealth v. Kreglinger [47] . The phrase "all laws made by the Parliament under the Constitution" makes clear the supremacy of the Constitution - the only federal laws which bind judges as well as others are those authorized by the Constitution.
Section 109 expresses the supremacy of any "law of the Commonwealth" over any "law of a State":
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.
Section 109 is invalidating or destructive; it has no reconstructive aspect. Its operation is automatic and does not require a judicial order.
The laws referred to in s. 109 include the decisional or common law, as well as legislation. Often it is State common law which is invalidated by a law of the Commonwealth.
Section 109 does not apply only to laws which are on the statute book at the same time. It must apply to an inconsistency between a State Act and a retrospective Act (i.e. a federal Act). Otherwise, Parliament's power to legislate retrospectively would be ineffective. Many, if not most, retrospective Acts will be inconsistent with State laws (statutory or common law). Retrospective Acts would not be effective if they did not prevail over what would otherwise be inconsistent State law. Equally, s. 109 applies where there is an inconsistency between an Act and a retrospective State Act, even if they were not "on the statute book" at the same time. It is enough that if both were laws they would be inconsistent, whether that inconsistency if produced by prospective operation of both or retrospective operation of both, or by retrospective operation of either.
Can s. 109 invalidation be overcome by legislation? At the time of the commission of the acts of racial discrimination, the State Act was invalid by reason of s. 109 of the Constitution (the Viskauskas Case [48] ). It was invalid from its inception and continues to be invalid at least until the operation of the Amendment Act. Can the invalidating effect of s. 109 during that period be removed by an Act? This is a question of the utmost importance. The answer depends not on any precedent, but on the direct operation of s. 109.
To take the extreme, suppose the Racial Discrimination Act were entirely repealed by an Act which declared that the Racial Discrimination Act was to be treated as if it had never existed. Would the consequence be that the State Act has been operative from the time of its enactment? The answer is that s. 109 would already have operated throughout that time to invalidate the State Act. Parliament cannot alter the incidence of s. 109 so as to render the State Act valid during that time. An Act cannot undo the invalidating effect which s. 109 has had on a State Act.
As from the commencement of operation of the Amendment Act, the basis on which s. 109 could operate in respect of any State Act that "furthers the objects of the Convention and is capable of operating concurrently with" the Racial Discrimination Act, as amended, was removed. But that did not affect the previous operation of s. 109. If an inconsistency occurs because of prospective or retrospective operation of federal or State law, s. 109 operates to render the State law invalid to the extent of the inconsistency. But retrospective operation of federal law cannot render valid what s. 109 made invalid. This would elevate legislation above the Constitution.
Equally, State legislation cannot overcome the invalidating effect of s. 109. Suppose an inconsistency arose only because of a particular feature of a State Act but the result was the invalidity not merely of that feature but of the whole State Act. Suppose the State retrospectively amended the State Act to delete that feature. Nevertheless the State Act would remain invalid until the amendment.
Neither federal nor State Parliament can render valid what s. 109 has made invalid. But of course, either can legislate to remove an inconsistency so that s. 109 will not continue to apply. Also, although the federal Parliament itself cannot undo the previous invalidating effect of s. 109, it can clear the way for the State Parliament to make a fresh State Act to apply retrospectively in the same terms. Thus both Parliaments can legislate retrospectively so that a fresh State law would come into existence giving present legal force to the procedures which have been followed and the remedies which have been obtained by Mr. Metwally.
In expressing the view that legislative action by State Parliament as well as the federal Parliament could restore Mr. Metwally to where he would be if the State Act had been valid, I am not suggesting that this course be undertaken. Because Mr. Metwally has in good faith relied upon what the State legislature has enacted he has become embroiled in highly complex constitutional problems, transcending his own case. Without expressing any opinion on the merits, these circumstances suggest that the interests of justice might best be served by other measures, perhaps an executive remedy, rather than legislative action which has the potential for further lengthy constitutional litigation.
I agree with the Chief Justice, for the reasons he has stated, that s. 50 of the State Act is ancillary to Pt II of the State Act. It therefore had no operation during the period 1977-1983. I also agree with the Chief Justice's proposed order concerning s. 50 of the State Act.
(1) Whether the enactment of the provisions of s. 3 of the Racial Discrimination Amendment Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for the reason that in purporting to do so they deny the operation of s. 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the racial discrimination provisions of the Anti-Discrimination Act 1977 N.S.W..
(2) Whether, in the event of an affirmative answer to question 1 hereof, the provisions of Pt II of the Anti-Discrimination Act 1977 N.S.W. were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of s. 109 of the Constitution.
The wording of the questions creates a difficulty. Parliament is entitled to spell out its intention retrospectively and to enact what it might validly have enacted originally. The purported retrospective operation or effect of the provisions of s. 3 does not deny the operation of s. 109, and s. 3 is not invalid for such a reason. Strictly therefore, the answer to question 1 should be "No". To answer this, and therefore not to answer question 2 would be misleading. Question 1 should not be answered. Section 109 of the Constitution is directed to the invalidity of State law, not federal law. The real question is whether the State Act is valid, taking into account the existence of the Racial Discrimination Act and the Amendment Act. Section 3 of the Amendment Act does not render valid the provisions of the State Act prior to the passage of the Amendment Act.
In question 2, the introductory condition should be ignored and the answer should be: "The provisions of Pt II of the Anti-Discrimination Act 1977 N.S.W. were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975 and the operation of s. 109 of the Constitution, and the enactment of the Racial Discrimination Amendment Act 1983 did not give those provisions a valid operation prior to the date of that enactment."
I would answer the first question submitted for the Court's determination in the negative. I agree with the reasons advanced in support of that conclusion by Mason J. and Dawson J. It is unnecessary to repeat them and I wish merely to add a brief observation.
The argument advanced for the University seeks to limit the legislative power of the Commonwealth Parliament by invoking s. 109 of the Constitution. But in my opinion, that is not an appropriate use of the section. It is not concerned at all with the scope of legislative power but with a much more practical matter, the resolution of conflict between two valid laws. Although its terms are well known, it may be desirable to repeat them:
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. This section is not concerned to resolve conflicts between laws as they may have existed in the past or as they may be in force in the future. Its terms speak to a situation where two inconsistent laws purport to operate with respect to material circumstances.
In the present case, the acts alleged by Mr. Metwally to constitute racial discrimination under s. 17 of the Anti-Discrimination Act 1977 N.S.W. occurred between 1978 and 1981. The complaints were heard by the Tribunal and its decision given in November 1983. The University's appeal from that decision was instituted in December 1983. The question of inconsistency between the State Act and the Racial Discrimination Act 1975 Cth, as amended, was raised as one of the grounds of appeal. The Racial Discrimination Amendment Act 1983 Cth came into force on 19 June 1983. It is unnecessary to consider what the position would have been if the Tribunal had delivered its decision before the amending Act came into force. The fact is that at the time of the Tribunal's decision the State Act was not inconsistent with the Commonwealth Act. Furthermore, the Commonwealth Parliament was clearly empowered to enact a law with retrospective effect. One cannot then escape the conclusion that not only was there no inconsistency between the two Acts from 19 June 1983 but that from that date onwards it was true to say that the Acts had never been inconsistent. The conclusion follows because the proper construction of the amending Act denied the existence of any inconsistency, and denied as a matter of present or future fact that there had ever been any inconsistency. It does not deny the historical fact of inconsistency prior to June 1983. The fact that such a result is achieved by what has been described as a statutory fiction is not to the point. The same result could have been achieved in other ways. It is not a case of an attempt to make the very existence of legislative power depend on a "deeming" provision.
Retrospective legislation which has the effect of subjecting to penalty actions which at the time of their commission were not so subject will often be abhorrent to those who are concerned to maintain a just society governed by the rule of law. But the argument for invalidity of the law cannot derive support from the alleged injustice of its operation. That argument must stand or fall on the question of legislative power to make the retrospective law in question and then, given such power, on the operation of s. 109 if any in relation to that law and the State Act. In any event, it is to be observed that the circumstances exposed by the present case were exceptional. In terms, the conduct for which the University has been found responsible was proscribed by the State law, as to which at all material times no finding of invalidity had been made. It was to all intents and purposes fully operative. In these circumstances it can scarcely be said that the University may be the unwitting victim of a retrospective law. Of course, the University's appeal on all issues other than invalidity is yet to be heard.
The facts, the relevant laws and the questions for decision are stated by the Chief Justice. I agree that it follows from the reasons for judgment in Viskauskas v. Niland [49] that the whole of Pt II of the Anti-Discrimination Act 1977 N.S.W. ("the State Act") was inconsistent with the Racial Discrimination Act 1975 Cth prior to the Racial Discrimination Amendment Act 1983 Cth and was "invalid" by reason of s. 109 of the Constitution. The retrospective effect of s. 6A of the Racial Discrimination Act, inserted by the 1983 Amendment Act, upon the operation of s. 109 of the Constitution is here in question.
Section 109 can be divided into two parts: the condition which governs its operation ("When a law of a State is inconsistent with a law of the Commonwealth"), and the operative provision ("the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid"). Section 109 operates upon a law of a State that is inconsistent with a law of the Commonwealth. Section 109 does not purport to affect the Commonwealth law; it makes the State law inoperative, leaving the Commonwealth law a clear field of operation: Carter v. Egg and Egg Pulp Marketing Board (Vict.) [50] ; Butler v. Attorney-General (Vict.) [51] . A law of a State that s. 109 makes inoperative is incapable of creating or affecting legal rights or obligations: its legal force and effect are sterilized.
The condition governing the operation of s. 109 on a State law has a temporal aspect. It is satisfied "When a law of a State is inconsistent" - i.e., for so long as the inconsistency exists. It is only to that extent that there is inconsistency: Collins v. Charles Marshall Pty. Ltd. [52] . When the inconsistency ceases, the sterilizing effect of s. 109 ceases and the State law is, or is again, of full force and effect. As Taylor J. said in Butler [53] :
The section is, of course, not dealing merely with instruments as such; it is dealing with instruments having the force of law and which are intended during the period of their operation to create rights and duties and to impose obligations according to their tenor. That being so it seems to me that the words "to the extent of the inconsistency" must be taken to have a temporal as well as a substantive connotation. Indeed the scheme of the section is consistent only with this view. The Federal Act can "prevail" only whilst it remains in force and invalidity of the State Act is produced only as the counterpart of the "supremacy" of the Federal Act. 1. (1955) 92 C.L.R. 529, at p. 548. 2. (1961) 106 C.L.R., at p. 283.
The period during which s. 109 sterilizes a State law is the period during which the condition which governs its operation is satisfied; i.e., while the Commonwealth law and the inconsistent State law are contemporaneously on the respective statute books. During that period, a legal right or obligation that would have arisen under the State law had it been operative does not arise. During that period, an act, matter or thing to which the State law would have applied is barren of the legal effect that the State law would otherwise have attributed to it. That consequence flows from the operation of s. 109, not from the operation of the Commonwealth law with which the State law is inconsistent:Reg. v. Railways Appeals Board (N.S.W.); Ex parte Davis [54] ; Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [55] . When and so long as the Commonwealth law and the inconsistent State law are on the statute books, the condition is satisfied and s. 109 takes effect: it is self-executing: Federated Saw Mill &c. Employés of Australasia v. James Moore & Son Pty. Ltd. [56] .
When inconsistency between a Commonwealth law and a State law is removed by an amendment of the Commonwealth law, the condition which governs the operation of s. 109 is no longer satisfied. As the temporal operation of s. 109 depends on the satisfaction of the condition from time to time, the State law takes or regains its full force and effect with the amendment of the Commonwealth law but, in my opinion, a retrospective amendment of the Commonwealth law does affect the past operation of s. 109 upon the State law. The period during which the State law was inconsistent with the Commonwealth law is a matter of history, not of legislative intention. If the retrospective amendment of the Commonwealth law were effective to satisfy retrospectively the condition governing the operation of s. 109, the operation of s. 109 would be contradictory; prior to the retrospective amendment, s. 109 would have deprived the State law of legal force and effect, yet after the amendment it would be necessary to deny that s. 109 had any operation on the State law during the same period. It is impossible to suppose that s. 109 could so operate as to attribute to a State law no legal force and effect in its application to acts, matters and things that occurred or existed prior to the amendment of the Commonwealth law and, after the amendment, to acknowledge that the State law had full force and effect in its application to the same acts, matters and things.
Where the condition governing s. 109 is in truth satisfied, it is not within the power of the Parliament to deem it not to be satisfied. The Parliament can remove an inconsistency, but it cannot deem an inconsistency to be removed. In Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [57] , Mason J. said:
It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. If the Parliament is unable legislatively to deny the existence of direct inconsistency, it is equally unable legislatively to deny that the inconsistent laws existed contemporaneously. Satisfaction of the condition governing s. 109 can be ascertained only from time to time by reference to the laws that are standing on the statute books of the Commonwealth and the States, and the operation of s. 109 depends upon the fact that inconsistent laws are on the statute books at the same time. Though a law of the Commonwealth can be given a retrospective operation, it cannot retrospectively endow a State law with the force and effect of which s. 109 deprived it before the retrospective Commonwealth law was enacted. It follows that the events upon which the first respondent's claims for relief were founded were, at the time when they occurred, devoid of legal effect under Pt II of the State Act. 1. (1977) 137 C.L.R., at p. 563.
The first respondent also made a claim under s. 50 of the State Act. For the reasons stated by the Chief Justice, I agree that s. 50 had no operation at the relevant time in so far as it is ancillary to Pt II of the State Act. I would answer the questions as the Chief Justice proposes.
The University of Wollongong has appealed to the New South Wales Court of Appeal from a decision of the Equal Opportunity Tribunal of that State ("the Tribunal") that it pay compensation to the respondent, Mr. Metwally, for unlawful conduct, in the form of racial discrimination and victimization, practised against him by persons for whose actions it has been held responsible. If the findings of the Tribunal be correct, one cannot but be concerned that such conduct should occur on the campus of an Australian university. Any such sentiment cannot, however, be allowed to obscure the fact that the question removed into this Court pursuant to s. 40 of the Judiciary Act 1903 Cth raises a matter of general constitutional importance, namely, whether s. 109 of the Constitution should properly be seen as providing a degree of real protection to the citizen faced with the otherwise impossible predicament of contemporaneous and conflicting demands of Commonwealth and State laws.
The conduct of which the Tribunal has found the appellant vicariously guilty took place between May 1978 and September 1981. It is said to have been unlawful under the provisions of the Anti-Discrimination Act 1977 N.S.W. ("the N.S.W. Act") and the compensation which the Tribunal has awarded was in purported pursuance of the provisions of that Act. Subject to an argument relating to the complaint of victimization to which subsequent reference is made, it is common ground between all parties and intervenors that, at the times when the alleged conduct occurred, the relevant provisions of the N.S.W. Act were "invalid", under the provisions of covering cl. 5 and s. 109 of the Constitution, in that they were, in the relevant sense, inconsistent with the provisions of the Racial Discrimination Act 1975 Cth ("the Commonwealth Act"): see Viskauskas v. Niland [58] . In other words, the conduct of which complaint is made was not unlawful under any operative law of New South Wales at the time at which it occurred and, viewed contemporaneously, the appellant was not liable for damages under State law at that time. The Parliament of New South Wales has subsequently passed no relevant retrospective legislation. The Act which is said to have led to retrospective unlawfulness and liability under State law is a Commonwealth Act - the Racial Discrimination Amendment Act 1983 Cth ("the 1983 Amending Act"). The proposition for which Mr. Metwally, with the support of the respondent Attorney-Generals for the Commonwealth and New South Wales and the intervening Attorney-Generals for South Australia and Western Australia, contends is a timely one in that it is readily adaptable to Orwellian notions of doublethink. It is that, under s. 109 of the Constitution, the Commonwealth Parliament can, by retrospective legislation, produce the consequences in any field in which it possesses legislative power that a State law which was invalid at a particular time was valid at that time or that a State law which was valid at a particular time was invalid at that time and that an act which was not unlawful under State law at the time when it was done was unlawful, or even criminal, under that law at that time or that an act which was unlawful, or even criminal, under State law at the time when it was done was not unlawful under that law at that time.
In the course of argument on behalf of the respondents, the submission was made that s. 109 of the Constitution was designed to ensure supremacy of valid Commonwealth laws and that it would be anomalous if such a provision were to be interpreted in a way which would detract from the parliamentary sovereignty of the Commonwealth. Even if that were the sole function served by s. 109, that assertion would have little force since, on any approach, s. 109 enhances the supremacy of Commonwealth laws by directly invalidating State laws to the extent of any inconsistency. More important, the submission fails adequately to acknowledge that the Australian federation was and is a union of people and that, whatever may be their immediate operation, the provisions of the Constitution should properly be viewed as ultimately concerned with the governance and protection of the people from whom the artificial entities called Commonwealth and States derive their authority. So viewed, s. 109 is not concerned merely to resolve disputes between the Commonwealth and a State as to the validity of their competing claims to govern the conduct of individuals in a particular area of legislative power. It serves the equally important function of protecting the individual from the injustice of being subjected to the requirements of valid and inconsistent laws of Commonwealth and State Parliaments on the same subject. The section expressly provides that, in such a case, the law of the Commonwealth "shall prevail" and that the law of the State "shall, to the extent of the inconsistency, be invalid". In its express stipulation of invalidity, the section has no parallel in the Constitutions of the United States or Canada and there is little point in looking to decisions of the Supreme Courts of those countries for assistance in the resolution of the question involved in the present case. In cases in this Court, it has been established that the word "invalid" in s. 109 should be read in the limited sense of "inoperative" and that, when inconsistency ends, the State law again becomes operative. The decisions to that effect, while perhaps making the ascertainment of the law sometimes more difficult, leave intact the essential protection which s. 109 affords a person faced with the competing, and conceivably impossible, demands of inconsistent Commonwealth and State laws. In that predicament, he or she cannot be subjected to the ordeal of being legally required to comply with both. For so long as inconsistency exists, s. 109 of the Constitution deprives the State law of its validity with the consequence that he or she has the constitutional right to ignore it.
The argument propounded on behalf of the respondents and the intervening States can be shortly summarized. Section 109 of the Constitution renders the law of a State invalid or inoperative to the extent of inconsistency, in the relevant sense, with a valid Commonwealth law. If the Commonwealth retrospectively repeals so much of an Act as occasioned inconsistency between provisions of that Act and the provisions of a State Act, the source of that inconsistency will be retrospectively removed. Since the effect of s. 109 of the Constitution is to render an inconsistent State Act invalid only to the extent and for so long as inconsistency persists, the consequence will be that, inconsistency having been retrospectively removed, the State Act will, for legal purposes, have been fully operative at those points of time when, if the position had been examined contemporaneously, inconsistency in fact existed. There are, in my view, two fallacies in this argument. The first is that it misconceives the nature of the retrospective operation of a statute. The second is that it either fails to take proper account of the temporal operation of the provisions of s. 109 of the Constitution or wrongly assumes that the Commonwealth Parliament possesses legislative competence retrospectively to reverse the operation of the constitutional provision by the importation of a fiction.
A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot, however objectively, expunge the past or "alter the facts of history": cf. Akar v. Attorney-General (Sierra Leone) [59] . If the fact was that its Emperor wore no clothes, it is powerless either to reverse that fact outside the fields in which it is master or objectively to convert into falsehood the truth which a small child saw. That position is, of course, a fortiori in the case of a parliament whose powers are limited even within the territorial area for which they exist. For the purposes of an organic law, such as the Constitution, which lies above the law which such a parliament may make, it may be a relevant fact that that parliament has enacted that some fact or law which in truth existed is to be deemed never to have been. If, however, that organic law is framed so as to act upon the reality, the retrospective fictions of the subordinate law will be unavailing. It is only if the organic law is framed to act upon any fictions that might subsequently be introduced into that subordinate law that the parliament which has power over that subordinate law can control the operation of the organic law by the retrospective introduction of such fictions.
Section 109 of the Constitution is not concerned with legal fictions. It is concerned with the reality of contemporaneous inconsistency between a valid law of the Commonwealth and an otherwise valid law of a State. According to its terms, its operation is immediate. Its terms are unqualified and self-executing. If there is inconsistency between an otherwise valid law of a State and a valid law of the Commonwealth the State law shall be, to the extent of the inconsistency, invalid. It is not the Commonwealth law which operates to make the State law invalid, it is the Constitution itself: see Federated Saw Mill &c. Employès of Australasia v. James Moore & Son Pty. Ltd. [60] ; Wenn v. Attorney-General (Vict.) [61] . It is the Constitution and not the Commonwealth Parliament which tells the citizen faced with the dilemma of inconsistent Commonwealth and State laws which both, according to their terms, apply to him or her that the State law is invalid and can be disregarded. If, at some subsequent time, the Commonwealth repeals or amends its law to remove the inconsistency, the State law will then become again valid or operative not from some prior date but from the time when there was, in fact, no longer inconsistency. The fact that the Commonwealth Parliament legislates retrospectively to introduce the fiction that, for the purposes of its law, its inconsistent law never existed or had a different operation to that which it in fact had cannot alter the objective fact that at the previous time when s. 109 operated that inconsistency did exist. Nor can it alter the fact that the immediate and self-executing provisions of s. 109 have already operated upon that inconsistency to invalidate the State law not for the period in which the Commonwealth Parliament, by the introduction of a fiction for its purposes, has subsequently said that its law had a different operation to that which it in fact had but for the period in which the fact of that inconsistency existed. So to say is not to construe s. 109 of the Constitution as imposing a restriction on Commonwealth legislative power. It is simply to recognize that while the Commonwealth can retrospectively legislate for itself it cannot retrospectively impose as State law the provisions of a law which the Constitution has said was invalid because of contemporaneous inconsistency which has subsequently been removed. That is something which, if it is to be done, must be done retrospectively by the relevant State.
It follows that the Commonwealth Parliament, being subordinate to the Constitution, could not, by its 1983 Amending Act, reverse the past operation of s. 109 of the Constitution which had rendered invalid or inoperative the relevant provisions of the N.S.W. Act. The Commonwealth Parliament possessed no power unilaterally to override that operation of the Constitution either by amending the terms of s. 109 or by creating a legally effective illusion that the section had never operated at all by the introduction of a retrospective fiction into its law. That being so, the position remains that the relevant provisions of the N.S.W. Act were not operative at the time the acts complained of in the present case were committed and the conduct for which the appellant has been held responsible was not unlawful under the provisions of the N.S.W. Act.
There are two further matters to which reference should be made. The first is that it was submitted on behalf of Mr. Metwally that, even if the provisions of the N.S.W. Act relating to racial discrimination were, at the relevant time, inoperative by reason of inconsistency with the provisions of the Commonwealth Act, the provisions of s. 50 of the N.S.W. Act, relating to victimization, were not inoperative by reason of any such inconsistency. The submission was succinctly developed by counsel for Mr. Metwally and can be briefly disposed of. The simple answer to it is that the provisions of s. 50, in so far as they relate to victimization in retaliation for resort to provisions of the Act relating to alleged racial discrimination, are ancillary to the substantive provisions of the Act dealing with that subject and, to that extent, were invalid or inoperative during the period in which the substantive provisions dealing with racial discrimination were inoperative under s. 109 of the Constitution.
The second matter is that it should be clear that the foregoing does not involve a denial of the competence of the Parliaments of the Commonwealth and of a State, in combination, to legislate retrospectively for the purpose of remedying any unintended operation of the provisions of s. 109 of the Constitution. To the contrary, the above comments about the operation of s. 109 of the Constitution and the nature of statutory retrospectivity tend to support the conclusion that the Parliaments of the Commonwealth and a State can effectively combine to achieve that purpose. If, for example, the New South Wales Parliament were now to pass legislation to the effect of the relevant provisions of the N.S.W. Act and to provide that those provisions would have retrospective operation, the question whether that new law was valid or operative would fall to be determined by reference to the time when it was in fact on the statute book as distinct from the time in which, under its provisions, it was, for the purposes of the law of the State, deemed to have been operative. That being so, the provisions of s. 109 would operate to render such a subsequent State law invalid only if, and to the extent that, there was some present inconsistency with subsisting Commonwealth law. Such a situation would be quite different in nature to that for which the respondents have contended in the present case in that it would be the Parliament of New South Wales which would have legislated to give retrospective operation to provisions of its own law and in that, while the citizen would have been subjected to the operation of retrospective legislation, the provisions of s. 109 would nonetheless have operated to ensure that there was, in fact, no time at which he was accountable to both a law of the Commonwealth and an inconsistent law of a State. Nor does anything in the foregoing necessarily involve any denial of the competence of the Commonwealth Parliament to preclude enforcement of a State law in relation to past contraventions if the present enforcement of that State law would be contemporaneously inconsistent with the provisions of that Commonwealth law. These questions have not however been fully investigated in argument in the present case and I refrain from forming or expressing any concluded view upon them.
I would answer the questions in the manner proposed by the Chief Justice and make the declaration which he suggests.
I venture to make one further comment. The outcome of this case will inevitably appear to Mr. Metwally to involve an unjust denial of his reasonable expectation that, as a visitor to this country, he might resort to, and rely upon, what governments and parliaments have asserted to be the law. He will derive no personal solace from the fact that, in declaring invalid the law upon which he sought to rely, this Court has performed its allotted function under the Constitution of ensuring that, whatever governments might say or parliaments might seek to do, the citizen cannot be subjected to an obligation under State law which is contemporaneously inconsistent with an obligation under Commonwealth law to which he is also subjected. One would hope that, in the circumstances of this particular case, the relevant authorities will attempt to ensure that Mr. Metwally receives swift and proper compensation for any legitimate claim which he may have against the respondent University.
The first respondent, Mohamed Naguib Fawzi Ahmed Metwally, made two complaints under the Anti-Discrimination Act 1977 N.S.W. against the appellant University and pursuant to s. 91 of that Act he required those complaints to be referred to the Equal Opportunity Tribunal. That Tribunal concluded that the complaints were substantiated and ordered the University to pay damages to Metwally. Under s. 118 of the Act the University appealed to the Court of Appeal of the Supreme Court of New South Wales.
One of the grounds of appeal to the Court of Appeal was removed at the instance of the Attorney-General for New South Wales into this Court in the form of two questions pursuant to s. 40(1) of the Judiciary Act 1903 Cth. Those questions are as follows:
(i) Whether the enactment of the provisions of s. 3 of the Racial Discrimination Act 1983 was beyond the power of the Parliament of the Commonwealth in so far as those provisions purport to have retrospective operation or effect for the reason that in purporting to do so they deny the operation of s. 109 of the Constitution upon an inconsistency which prior to their enactment existed between the Racial Discrimination Act 1975 and the racial discrimination provisions of the Anti-Discrimination Act 1977.
(ii) Whether, in the event of an affirmative answer to (i) above, the provisions of Pt II of the Anti-Discrimination Act were invalid prior to the enactment of the Racial Discrimination Amendment Act 1983 by virtue of their inconsistency with the Racial Discrimination Act 1975, and the operation of s. 109 of the Constitution.
The Racial Discrimination Act referred to is a Commonwealth Act and in Viskauskas v. Niland [62] , it was held by this Court that there was an inconsistency between that Act and Pt II of the New South Wales Anti-Discrimination Act (which is the part dealing with racial discrimination) so that the latter was invalid under s. 109 of the Constitution.
Following the decision in Viskauskas v. Niland the Commonwealth enacted the Racial Discrimination Amendment Act 1983 Cth, which inserted into the Racial Discrimination Act the following section:
6a. (1) This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act.
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) a person has, whether before or after the commencement of this section, made a complaint, instituted a proceeding or taken any other action under that law in respect of an act or omission in respect of which he would, but for this sub-section, have been entitled to make a complaint under this Act,
the person shall be deemed never to have been, and is not, entitled to make a complaint or institute a proceeding under this Act in respect of that act or omission and any proceedings pending under this Act at the commencement of this section in respect of such a complaint made before that commencement are, by force of this sub-section, terminated.
(a) a law of a State or Territory that furthers the objects of the Convention deals with a matter dealt with by this Act; and
(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act,
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this sub-section renders a person liable to be punished more than once in respect of the same act or omission.
The convention referred to is the International Convention on the Elimination of All Forms of Racial Discrimination to which the Racial Discrimination Act was intended to give effect.
The validity of the Racial Discrimination Amendment Act or of the parent Act as amended was not argued save in relation to the point raised by the first question. The appellant's argument upon that point can be stated quite simply. It is that the Commonwealth Parliament cannot retrospectively deem its intention to have been something other than it was, so as to remove an inconsistency under s. 109 of the Constitution and thus revive the operation of a State law which was inoperative because of the inconsistency. Thus it was said that Pt II of the Anti-Discrimination Act, which was the foundation of the respondent's complaints, is invalidated under s. 109 because it is inconsistent with the Commonwealth legislation. It was said that the Commonwealth legislation covered the field of racial discrimination and could not retrospectively be validated by the enactment of a provision deeming the Commonwealth Parliament never to have had the intention of covering the field. As I understand the argument, it asserts that in attempting to ascribe to the Commonwealth Parliament an intention which it previously did not have (and Viskauskas makes it clear that it did not) the amending Act purports to deprive s. 109 of the operation which it had upon the New South Wales legislation. In my view, that argument cannot succeed but, before turning directly to it, it is necessary to make some preliminary observations.
Putting on one side the question of retrospectivity, it is clear that Parliament can by a declaration of intention narrow the field which a law might otherwise be held to cover. It cannot, however, by this means avoid a direct conflict with a State law arising from the express terms of its legislation. This point was made by Mason J. in Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation [63] , in considering a provision of a similar nature to s. 6A(1) of the Racial Discrimination Act:
Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.
It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed.
See also Palmdale-A.G.C.I. Ltd. v. Workers' Compensation Commission (N.S.W.) [64] . 1. (1977) 137 C.L.R. 545, at p. 563. 2. (1977) 140 C.L.R. 236, at p. 243.
It is also clear that the Commonwealth Parliament has full power to give a retrospective operation to its laws: R. v. Kidman [65] ; Ex parte Walsh and Johnson; In re Yates [66] . As was observed by Williams J. in Nelungaloo Pty. Ltd. v. The Commonwealth [67] :
It is trite law that the powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution are plenary powers of legislation as large and of the same nature as those of the Imperial Parliament itself (Reg. v. Burah [68] ). The use of a deeming provision in s. 6A of the Racial Discrimination Act is obviously intended to make the section retroactive and thus retrospective in the true sense of providing that at a past date the law shall be taken to have been that which it was not: see R. v. Kidman [69] . Apart from s. 109 of the Constitution there can be no reason why s. 6A should not be given its full effect, but it is said that s. 109 must prevail over any Act of Parliament so that s. 6A cannot have the effect of removing any past inconsistency between the Anti-Discrimination Act and the Racial Discrimination Act. That is clearly the effect which it is intended to have, although whether the intention is fully realized may depend upon other considerations as well as the retrospective operation of s. 6A. Those other considerations do not arise upon the questions asked, which are limited to the issue of retrospectivity. Upon that issue I am unable to accept the argument that s. 6A is beyond the competence of the Parliament and can see no reason why it should not be given effect according to its tenor. 1. (1915) 20 C.L.R. 425. 2. (1925) 37 C.L.R. 36. 3. (1947) 75 C.L.R. 495, at pp. 503-504. 4. (1878) 3 App. Cas. 889, at p. 904. 5. (1915) 20 C.L.R., at p. 443.
The way in which s. 109 operates is well established. A State law which is inconsistent with a valid Commonwealth law is not unconstitutional. If it is first in time it will have been in operation before the inconsistent Commonwealth law came into force and if it is still on the statute book when the Commonwealth law ceases to be in force it will come into operation again. It has no operation during the period of, and to the extent of, the inconsistency, but this is not because of any inherent vice. It is because the legislative field is occupied for the time being by the Commonwealth legislation. The word "invalid" in s. 109 cannot mean that the inconsistent State law is ultra vires. It must mean that it is inoperative: see Carter v. Egg and Egg Pulp Marketing Board (Vict.) [70] , per Latham C.J.; Butler v. Attorney-General (Vict.) [71] , per Fullagar J.
When it is sought to apply s. 109, then at that time the question must be asked whether there is any inconsistency between the relevant State law and the relevant Commonwealth law. If there is, then under s. 109 the State law is inoperative to the extent of the inconsistency. If there is not, then s. 109 has no operation and it matters not in my view how the absence of an inconsistency comes about - whether it be because the Commonwealth has passed no law on the relevant subject, or because the Commonwealth has repealed any law which it had on that subject, or because the Commonwealth law has ceased to be in force because of the disappearance of the power (e.g., the defence power) to support it. And if the Commonwealth can remove an inconsistency by repealing the law there is no reason, in my view, why it cannot do so retrospectively. Retrospective repeal cannot change the operation of s. 109, but it may change the situation from one upon which s. 109 previously operated to one upon which it has ceased to have an operation. Similarly, to deem the Parliament to have had an intention which it did not have at the time Commonwealth law was enacted, as s. 6A does in this case, is to do no more than change the circumstances which govern the applicability of s. 109 when it comes to be applied. To be sure, the effect may be to make operative a previously inoperative State law and so revive rights or obligations dependent upon the operation of the State law. But it is in the nature of a retrospective law that it changes things in the past and if in so doing it removes a past inconsistency then it removes the circumstance upon which s. 109 operated and so denies its present application.
If, even after the Racial Discrimination Amendment Act came into force, the question were asked whether at any previous time there had been an inconsistency between Pt II of the New South Wales Anti-Discrimination Act and the Commonwealth Racial Discrimination Act, the answer would necessarily be that there had been and that the State Act had been inoperative to the extent of the inconsistency while it existed. But it would be necessary to add that now, because of the operation of the new s. 6A of the Racial Discrimination Act, the inconsistency may have been removed, not only for the future but also for the past, depending upon whether the intent declared by that section sufficiently narrows the field covered by the Act so as to remove the previous inconsistency.
This is not to deprive s. 109 of its operation. That section affords no protection against retrospective laws. It cannot do so for its concern is not with legislative power but with the resolution of conflict between laws which arise from the exercise of legislative power: see O'Sullivan v. Noarlunga Meat Ltd. [No.2] [72] .
Plenary legislative power necessarily bestows the capacity to pass retrospective legislation - to say that henceforth a law is to be different, not only in the future, but in the past as well. That is what s. 6A does. There is no fiction in the result even if the device which is used to achieve it - the deeming provision - may be described as a fiction: see Hunter Douglas Australia Pty. Ltd. v. Perma Blinds [73] , per Windeyer J. The same result could have been achieved by other means. For example, the Commonwealth Parliament could have repealed the Racial Discrimination Act and reenacted it retrospectively with a suitable declaration of limited intent. Or it could have repealed its legislation, retrospectively if that were necessary, and re-enacted it prospectively with a suitable declaration of intent. The State legislature might then have reenacted its legislation retrospectively. In my view, s. 109 does not operate as a guarantee of rights or immunities which have been acquired as the result of its operation upon inconsistent laws, but if it were to do so it would be ineffective unless it operated to curtail State as well as Commonwealth legislative power. No suggestion was made in argument that s. 109 has such an operation and the reason, of course, is that s. 109 does not curtail legislative power, State or federal. It curtails the operation of State laws when they are inconsistent with Commonwealth laws and just as the inconsistency may be created by the Commonwealth Parliament so it may be removed by it, prospectively or retrospectively.
If that means that because of the retrospective removal of an inconsistency between a State and a Commonwealth law, a State law is re-activated so that something that was lawful at the time it was done becomes unlawful or vice versa, then that is no more than the ordinary result of retrospective legislation. It is often an undesirable result but it would be quite wrong, in my view, and a distortion of s. 109, to inhibit Commonwealth legislative power for that reason.
I should add that I have not embarked upon a more general examination of s. 109 or of covering cl. 5 because that has been done by Mason J. in his judgment and I agree, with respect, with the observations which he makes.
I would answer the questions: (i) no; (ii) unnecessary to answer.
University Of Wollongong
Metwally