University Of Wollongong v Metwally

University Of Wollongong v Metwally - [1984] HCA 74 - HCA 1983 case summary — Zoe

[22]

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.

[27]

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.

[110]

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.

[111]

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.

[114]

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.

[118]

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.

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