INCONSISTENCY WHETHER STATES HAVE POWER TO LEGISLATE TO OBTAIN STATISTICS
CONSTITUTION, ss. 51 (xi), 109 : CENSUS AND STATISTICS ACT 1905
The Commonwealth Statistician has called the attention of the Minister for Home Affairs to a Statistics Bill introduced into the Legislative Council of Western Australia by a Minister of the State. He points out that the Bill closely follows the Census and Statistics Act 1905 of the Commonwealth, involves the same obligations on citizens of the State, and will lead to a duplication of functions and a confusion of authority, and refers to section 51 (xi) of the Constitution-'Census and statistics', and also to section 109 (inconsistency of laws). He suggests that the State Bill is unconstitutional in view of the Commonwealth legislation; and that steps should be taken to prevent its passing into law.
The Minister for Home Affairs asks to be advised whether the proposed legislation by the State calls for Commonwealth intervention on constitutional grounds.
I do not see that there is anything in the State Bill which is 'inconsistent' with the Federal Act. It is true that practically the whole ground of the Bill has been covered by the State Act; and it is also true that in many branches of legislation, where the ground has been covered by Federal legislation, the State Parliament is ex necessitate excluded from the exercise of the concurrent legislative power. E.g. where the Commonwealth has established a patent law, under which exclusive rights are given, a State cannot establish a rival patent system. There are other cases in which Federal legislation covering a certain field might fairly be held to exclude the State legislative power on the ground that the necessary implication of the Federal legislation was that no further obligations should be imposed on the citizen than those imposed by the Commonwealth law-e.g. if the Commonwealth Parliament passed a law denning the obligations of shipowners and masters to seamen, a State Parliament could presumably not supplement those obligations even though there might be no direct inconsistency in the sense that the State law might be obeyed without disobedience to the Commonwealth law.
But the case of statistics is different; it is one of those purely 'concurrent' powers in which the Commonwealth requirements and the State requirements may exist side by side. It may be that State legislation is, as a matter of policy, unnecessary and even harassing to citizens-but that is a matter for the State Parliament to consider. There is no inconsistency; the citizen can obey both, and his obligation to obey the Federal law does not imply a freedom of obligation to obey a similar State law. If a State Parliament thinks fit to legislate to obtain certain statistics for itself independently, it has a right to do so.
Whether representations should be made to the State Government in respect to the unnecessary duplication of machinery is a question of policy.
[Vol. 6, p. 115]