Opinion Number. 70



Key Legislation



A Chinese holding a Tasmanian naturalization paper arrived from China in the Chingtu. No obstacle was placed in his way at Melbourne, where he was considered as exempted from the Immigration Restriction Act 1901 (Commonwealth) on the ground of domicile (section 3 (n)).

Thence he trans-shipped to Tasmania, and on arrival in Launceston the local Customs Officer rejected him on the ground that he was not provided with a certificate under section 7 of the Tasmanian Immigration Restriction Act 1898. Subsequently such a permit was issued by the State authorities.

The matter is submitted to me, by direction of the Acting Prime Minister, to advise on the question how far, in virtue of section 109 of the Constitution, the Commonwealth Act prevails over the State Act.

Section 108 of the Constitution provides that:
Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

Section 109 provides that:
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 51 (xxvii) of the Constitution empowers the Federal Parliament to legislate with respect to 'Immigration and emigration'.

Section 92 provides that:
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

In the United States, where the Constitution contains no provisions similar to sections 108 and 109 (quoted above), it has been held that the cases in which the legislation of Congress will supersede the legislation of a State or territory, without specific provision to that effect, are those in which the same matter is the subject of legislation by both (Davis v. Beason 133 U.S. 333); and that when a State statute and a Federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the Federal statute is one within the competency of Congress to enact, the State statute must give way (Gulf, Colorado and Santa Fe Railway Company v.Hefley 158 U.S. 98).

The test of inconsistency within the meaning of section 109 is whether the Federal statute and the State statute can be reconciled or made to stand together by any fair and reasonable construction. 'Inconsistent' is not so strong a word as 'repugnant'; and in my opinion a State statute is 'inconsistent' with a Federal statute when the evidentn intention of the Federal statute is to supersede the State statute, and regulate itself the whole subject-matter of the State statute. In this view the authorities on the question of'implied repeal' become useful as indicating the application of the constitutional provision as to inconsistency.

Repeal by implication is not favoured; but nevertheless, a later statute will be held to repeal an earlier one, without express reference, although there is no direct repugnancy, if according to all ordinary reasoning, the earlier provision could not have been intended to subsist: Hardcastle, Statutory Law, p. 336; Black, Interpretation of Laws, p. 116.

Where the later statute covers the whole ground of the earlier one, and makes new or different provisions, thus showing that it was intended to supersede prior enactments on the same subject-matter, and furnish the sole law on the subject, the implied repeal of the earlier enactments follows (United States v. Tynen 11 Wall. 88).

The application of this principle to the implied supersession of State statutes by Federal statutes covering the same subject-matter is supported by section 108 of the Constitution, which after declaring that the laws of a State relating to matters within the power of the Federal Parliament shall, subject to the Constitution, continue in force in the State, goes on to provide that 'until provision is made in that behalf by the Parliament of the Commonwealth', the State Parliament shall retain its powers of alteration and repeal. So far therefore as the subject-matter is covered by Federal legislation, the State power of alteration and repeal is gone. The alteration or repeal, if any, must then be by the Federal Parliament; and the doctrine of implied repeal is applicable to ascertain the extent to which the State statute is superseded.

Passing to the particular statutes under consideration,-the Immigration Restriction Act 1901 and the Tasmanian Immigration Restriction Act 1898-it is necessary, in order to apply these principles, to review the position before the passing of the Federal Act. There were at that time in force in some of the States, (i.e. New South Wales, Western Australia and Tasmania) Immigration Restriction Acts based on the Natal Act of 1897. These Acts though differing in detail were substantially in pari materia, and covered the same ground, prohibiting the immigration, into the State, of certain classes of immigrants.

The Federal Act has a similar scope, but applies to immigration into the Commonwealth.

I am of opinion that as regards immigration from beyond the Commonwealth the State Act, being in pari materia and covering the same subject-matter, is superseded.

One of the objects of empowering the Federal Parliament to legislate on this subject was to substitute uniform Federal legislation for the different local laws of the States; and I think that the scope of this particular Act shows that the intention of the legislature was that it should supersede the State Act, so far as the latter covered the same subject-matter.

As regards migration from one State to another-which is not dealt with by the Federal Act-it would seem that the State Act continues in force, subject to the Constitution. When, by the operation of section 92 of the Constitution, free trade, commerce and intercourse among the States is established, the State Act will be superseded so far as its operation would conflict with that section.

Until then it rests with the State authorities to direct its application so far as interstate migration is concerned.

[Vol. 2, p. 13]