Analyse and apply the principles of Australian constitutional law in answers to practical problems to demonstrate an understanding of the relevant principles of constitutional law

IRAC Analysis

Issue

The Commonwealth Parliament and Western Australia parliament passed respective legislation, which are contradictory in terms of the trade relations with Chinese and USA companies. Subsequently, the United States of American Company of Shipping (USACS) and Chinese shipping operators suffered from this conflict. Precisely, the Western Australia parliament enacted the Port State Agreement Act 2017. The legislation is intended to limit its trade ties with China since many Western Australian were concerned about China’s influence.

Moreover, the law intended to eliminate Western Australia’s trade dependence on China. More importantly, the statute tends to create favourable trade environment for USACS ships as opposed to China. On the contrary, the Commonwealth Parliament passed the Lighthouse Radio Replacement Trial Act 2017, which aims at promoting trade between the country and China by hindering trade deals with the USACS. Similarly, the Act neutralizes the effects of laws passed by the Western Australia parliament. The Commonwealth legislation will strongly support Chinese operators and substantially impede the business operations of USACS with a possibility of being quite disastrous to USACS.

A conflict emerged between the Western Australian government and the Commonwealth authority after the enactment of legislation by the federal and territorial national assemblies. Precisely, the legislations passed by the respective parliaments support divergent trade interests in respect to USA Company of shipping or Chinese operators. The disagreement arises because the Commonwealth government planned to facilitate the trade between Australia and China while on the other hand, Western Australia aimed to create new business ties with the USACS. The territorial government was reacting to public misinformation campaign launched by the Islamic Republic Inducing State (IRIS), which is a splinter group of Islamic State (ISIS). Therefore, the IRIS formulated policies and strategies to undermine their enemies. Therefore, they desired to weaken Australia by interfering with its affairs with China. The IRIS used different TV commercials to introduce public propaganda that greatly inspired concerns among many Western Australia about the influence of China. Consequently, by 2014, the majority of the population had deep-rooted distrust towards the Chinese. As a result, the Western Australian authorities started to destroy the business ties with China. In this regard, the Port State Agreement Act 2017(PSAGA) was passed under the new administration, which tried to reduce the state’s ties with China. The statute attempted to strengthen a State agreement that gives precedence in port access to ships servicing the USA.

Section 8 of PSAGA Schedule 1 legislation describes that the State Agreement is between the State Executive and a large shipping company, the USA Company of shipping (USACS). Therefore, the trade Agreement is referred to as the USACS Agreement under Schedule 1, which gives trading precedence to USACS. Therefore, the American Corporation enjoys 50 per cent reduced port fees while Chinese ship servicing fees are raised by 100 per cent.

On the other hand, the Commonwealth Parliament enacts the Lighthouse Radio Replacement Trial Act 2017, which encourages installation of the Radio Vlight’s system. The new system generates two serious problems. Initially, it depends on all ships in the area having functional radio equipment. However, USACS lacks dependable radio because it is one of the mechanisms they reduce the cost of operation. Secondly, the new system assumes the ships’ navigators or captains have an effective understanding of coordinate, and have practical numeracy skills. Subsequently, all these conditions are regarded as safe for Chinese vessels although they are insecure for USACS.

Rule

The Australian Constitution provides various provisions, which defines the powers of both the Commonwealth Parliament and state’s Legislative assemblies in the country (Keyzer, 2013). The constitution creates a parliamentary system in the country and delivers process to guarantee that the legislature does not pass statutes beyond its authority. Section 51 of Australian Constitution awards Australian Parliament its legislative powers (Saunders & Stone, (Eds.) 2018). There are various subsections each defining a ‘head of power’ that endow the Commonwealth Parliament to create legislation. The Commonwealth legislative authority is restricted under the constitution. In this regard, the powers not stipulated in section 51 are regarded as ‘residual powers’ (Aroney, Gerangelos, Murray & Stellios, 2015). States such as Western Australia use the residual powers. Furthermore, the Western Australian Parliament can legislate on the issues covered in Section 51 but the statute could be rendered ineffective should it be incoherent with or in an area constituted by Commonwealth legislation (Ratnapala & Crowe, 2012).

More importantly, Section 51 (vii) gives the Commonwealth Parliament supremacies to legislate on buoys, beacons, lightships and lighthouses (Rasnic, 2016). Precisely, pursuant to law, a lighthouse is a building, tower, or any structure developed to produce light from a structure of lenses and lamps and can be used to assist maritime pilots to navigate on inland waterways or oceans. They help in aerial steering in hazardous reefs, shoals and harbours. Previously, the Australian Parliament has passed laws on lighthouse such as Lighthouse Act of 1911. It set up a maritime authority that operates and maintains the lighthouses (Saunders & Stone, (Eds.) 2018).

In fact, Section 51 delivers the referral power, which authorizes the Australian Parliament to enact the law on any issue raised by any territory/state. Since the Constitution establishes a Federal system of government, both the Commonwealth and states have law-making powers (Curtin, 2016). It also provides a number of limits on the Australian parliament. Similarly, Section 51 permits a higher level of flexibility in the distribution of legislative power. Practically, the referral powers are quite essential in enabling the Commonwealth to pass law (Rasnic, 2016).

The sections also enable the Commonwealth to make laws regarding foreign trading, and corporations or monetary corporation established within the confines of the Commonwealth (Aroney, Gerangelos, Murray & Stellios, 2015). Based on this power, in 1989 the Australian legislature passed detailed laws on the corporation in the country, the Corporations Act 1989. The law provides not only corporations that existed in the past but also incorporation processes. Having diverse types of guidelines in every area for the creation of organizations established a legal difficulty for business (Saunders & Stone, (Eds.) 2018). The Commonwealth later acquired powers to pass laws based on incorporation processes by encouraging states to refer their authority over the process of incorporation to the Australian legislation.

On the other hand, Section 52 of the Australia Constitution forbids territorial legislatures from enacting legislation in Lighthouses (Curtin, 2016). Meanwhile, it implies that the federal legislature has exclusive power to create laws in this area. States are also prevented from charging taxes and customs, which assures free trade within the country. The development of a solitary Australian market was the main reason for the advancement of a federation (Keyzer, 2013). Prior to 1901, every colony introduced taxes for imported goods from other colonies leading to serious trade barrier that affected the economy of the nation.

On various occasions, the state legislatures and the federal Parliament can make laws on the same issue. Nonetheless, the Australian Constitution pursuant to Section 109 explains that if the state legislature and Federal Parliament enact contradictory legislation on a similar matter, then the Commonwealth law overrules the state law, or any section of the state legislation that conflicts with it (Ratnapala & Crowe, 2012).  In this regard, the Commonwealth can formulate laws on any of concurrent legislation and utilize Section 109 to dominate the existing laws. Moreover, the constitution under Section 122 permits the parliament to dominate the territory law at any point (Ratnapala & Crowe, 2012).

When the state law is considered null and void under the Section 109, it does not imply that it is unacceptable in the positivist logic that the Parliament of the State lacks authority to pass it. It means that though the state law is passed with appropriate procedural validity, it simply stops to have active force. Therefore, for section 109 to be effective, there must be a binding Commonwealth law and lawful State law (Aroney, Gerangelos, Murray & Stellios, 2015). According to section 109, when the Commonwealth law invalidates the state legislation, it continues to be a valid legislation of the Legislature, which passed it. The practical importance of this provision will become manifested if, later, the dominant Federal law stop to be operational (Crawford, 2016).

Previously, in 1920 the Australian High Court delivered a groundbreaking ruling in regards to the application of Section 109. For instance, in the Engineers Case of 1920, the judiciary prohibited the utilization of American precedent of McCulloch v. Maryland, which were formerly used in Australia. It noted that they would use the settled laws of construction providing supremacy to the provisions of the Australian constitution (Keyzer, 2013).

The High Court has established that in some circumstances, legislation may seem to give legal entitlement, privilege or right, while another legislation appears to diminish or take away some entitlement or right (Rasnic, 2016). For instance, in the Colvin v Bradley Brother Pty Ltd, the provision of Commonwealth suggested that managers in a particular company could hire women to serve on some machines whereas the State provision created an offence to engage in such actions. Therefore, it was unmanageable to adhere to both laws since they demanded to hire females (Saunders & Stone, (Eds.) 2018). Such inconsistency may need an agreement on the real impact of both laws in a personal case. In this respect, it could necessity a more refined analysis. Additionally, in Bell Group v Western Australia, the court noted that the state legislation was contradictory to the Federal’s income tax laws. The Western Australia Act attempted to fast track the termination and supervision of the Bell Group. In such case, the State law is nullified based on the level of the inconsistency (Aroney, Gerangelos, Murray & Stellios, 2015).

The court of law also assesses whether it is unmanageable to adhere to both statutes simultaneously. For instance, in case a state legislature passes a statute which is difficult to implement simultaneously with the Federal law it is rendered invalid. In the R v Licensing Court of Brisbane, the State legislation fixed the state plebiscite on alcohol business hours on the same day as the election of Commonwealth Senate (Curtin, 2016). Subsequently, the Commonwealth statute stipulated that a State referendum should not be organized on that day. The Court ruled that the referendum was null and void since the State legislation was to the point of the conflict invalid (Crawford, 2016). Therefore, the Act of Parliament must be treated as supreme when state law has similar provisions. Meanwhile, the court noted that the State law function based on the State Constitution. It is binding in all aspects to a point the Constitution and the Federal Act blocks it (Keyzer, 2013).

Therefore, in Australia, the powers to create law by either the State legislature or the Commonwealth are broad although they are not absolute. The constitution has various clauses and sections that serve as a control mechanism on the power of each parliament (Ratnapala & Crowe, 2012). Different restrictions on Federal legislature are essential because they because they prevent domination of the commonwealth in the country. It also removes the excessive power of state parliament, which assists in safeguarding the rights of the Federation (Saunders & Stone, (Eds.) 2018).

Application

When Western Australia Parliament enacted the Port State Agreement Act 2017, it was within its mandate to implement the law. The objective of the legislation was to help the USACS but limit the trade ties with China. However, the legislation was invalided when the Australian Parliament passed the Lighthouse Radio Replacement Trial Act 2017, which appears to contradict the state law (Ratnapala & Crowe, 2012). The legislation facilitates the trade between Australia and China as opposed to the US. Based on the tenets of the constitution, the Federation law is superior to the state or territorial state hence it overrides the latter under Section 109. Moreover, the constitution gives the Commonwealth Parliament the authority to make laws related to the management of lighthouses under Section 51 (vii) (Aroney, Gerangelos, Murray & Stellios, 2015).

More importantly, the head of power, which is contained in Section 51 of the Australian Supreme Law, gives the federal parliament power to enact the Lighthouse Radio Replacement Trial Act 2017 because lighthouse falls under this category (Harris, 2013). Nonetheless, the States are at liberty to enact laws regarding any matter in the heads of power but the law should not clash with a legislation of the Commonwealth administration. In this regard, the Western Australia was free to enact the Port State Agreement Act 2017 since there was no federal legislation that was in place. To this extent, the legislation was in valid (Rasnic, 2016). However, after the Commonwealth law was passed, the two created inconsistency, which demands the utilization of Section 109 to determine which type of law to follow. The provisions of Section 109 may function in different ways. Firstly, it may directly overturn state law in case it is difficult to comply with both the federal law and the state law (Ratnapala & Crowe, 2012). Secondly, it may indirectly nullify state law in case the intention of the Australian Parliament deals with the field in terms of a certain matter.

In the Ex parte Mclean (1930), Dixon suggested that inconsistency does not involve an ordinary coexistence of both laws vulnerable to concurrent obedience. However, it is founded on the intention of the parliament to exclusively, exhaustively or completely manage the particular issue in question (Saunders & Stone, (Eds.) 2018). Therefore, the intention of the Commonwealth parliament to make law in the issue of port administration would annul the state law. More importantly, the High Court of Australia can rule that it was unmanageable to achieve the simultaneous obedience. Therefore, both legislations fail to pass the test of simultaneous obedience; the Commonwealth law takes precedence (Rasnic, 2016). For instance, the Port State Agreement Act 2017 (PSAGA) expresses a state agreement that grants priority in port access to ships servicing the USA. Therefore, the trading priority is assigned to USACS over Chinese ships. On the contrary, the federal law encourages ship to use the Radio Vlight’s system, which places the Chinese ships at an advantage as opposed to the USACS. As a result, they both cannot be implemented at the same time hence rendering the state law invalid (Keyzer, 2013).

The High Court of Australia can also apply the principle of conferred right to rule that the laws are inconsistent. Since the PSAGA 2017 gives the American companies more entitlement, privilege, or legal right over the Chinese shipping firm, while the Lighthouse Radio Replacement Trial Act 2017 purports to eliminate or reduce their entitlement or right in order to favour the Chinese (Aroney, Gerangelos, Murray & Stellios, 2015). The inconsistency is evident because each legislation has different effects on the operations of a business. For instance, in the Clyde Engineering Co Ltd v Cowburn, the Chief Justice Knox argued that a logical test of contradiction was not adequate in each case. He articulated a trial, which noted that if state law is lawful, but undermine or impair the function of the Commonwealth law, to that level, it is invalid (Williams, Blackshield, Brennan & Lynch, 2014). The High Court of Australia resolved that inconsistency might emerge where the federal law impliedly or expressly, proposes to deal with a particular issue fully, and exclude or supersedes any other legislation in that field. In case the state legislature attempts to deal with the field or part of it protected by the Commonwealth law, then it becomes inconsistent, even if one can adhere to both legislations simultaneously (Saunders & Stone, (Eds.) 2018).

The test of ‘covering the area’ can be used to render the PSAGA 2017 inconsistent with Lighthouse Radio Replacement Trial Act 2017 (Rasnic, 2016). The law can assess whether the Port State Agreement Act intrudes upon or interferes with the issue discussed by the Commonwealth law. Secondly, the judge defines whether the Federal law envisioned controlling the issue completely (Keyzer, 2013).

 Similarly, in 1986, the Commercial Radio Coffs Harbour (CRCH) v Fuller, the petitioner CRCH radio station was demanded pursuant to its license approved by the Commonwealth to establish a transmission tower (Aroney, Gerangelos, Murray & Stellios, 2015). Later, CRCH acquired development permits from the local authority. A number of citizens indicated an absence of environmental deliberation under NSW laws. The CRCH pursued the invalidation of the state legislation against the commonwealth communications statute (Ratnapala & Crowe, 2012). The court declared that inconsistencies did not exist between the state and federal laws. In this case, the commonwealth laws did not exhaustive or wholly ‘cover the field’ but instead created a room for the action of State and territorial legislation. Acquiring of the licence under the federal law did not give immunity from other state laws. Likewise, a conflict did not emerge from the combined procedure of the two laws in accordance with section 109 of the Australian conclusion (Saunders & Stone, (Eds.) 2018).

Section 107 of the Australian Constitution gives the State legislature to make laws on any field, which is not mentioned in Section 52. In this regard, such powers are often regarded as the residual powers since they are not described by the Constitution, which suggests that they are in the sphere of the states (Ratnapala & Crowe, 2012). Since the constitution does not cover all the area, which can be legislated, states such as Western Australia can formulate laws, which are applicable to their populations, economies, and regions. Therefore, whatever powers in law making which are not precisely specified in the Constitution, they are inevitably left to the state parliament (Williams, Blackshield, Brennan & Lynch, 2014). In this respect, the PSAGA act is valid because it deals with state properties. It also addresses the area of taxation.

Conclusion

The case involving Western Australia Parliament and Commonwealth Parliament regarding the enactment of PSAGA 2017 and Lighthouse Radio Replacement Trial Act 2017 demonstrates conflicts between the two legislations. Precisely, Section 51 (vii) of Australian Constitution creates the head of power provisions, which gives the Federal Legislature to formulate laws on Lighthouse (Harris, 2013). On the other hand, the State has no powers to enact legislation on Lighthouse. Moreover, section 109 of the constitution implies that the state law becomes invalid when it clashes with the Commonwealth law. Precisely, the test of simultaneous obedience illustrates that when it is difficult to comply with both laws, the Commonwealth supersedes the state law. Moreover, when legislation seems to take away an entitlement or right while another appears to deliver the same right/entitlement, the Federal law becomes dominant. The principle of covering the field gives a legislative intention to the Commonwealth law even if there is no direct conflict between the two laws. Since the Commonwealth Act envisioned regulating that issue to its entirety, it becomes dominant over the state legislation. For this reason, the state law becomes ineffective based on the provisions of Section 51 (vii) and Section 109 (Crawford, 2016).

References

Aroney, N., Gerangelos, P., Murray, S., & Stellios, J. (2015). The Constitution of the Commonwealth of Australia: History, Principle and Interpretation. Cambridge University Press.

Crawford, L. B. (2016). Can Parliament Confer Plenary Executive Power-The Limitations Imposed by Sections 51 and 52 of the Australian Constitution. Fed. L. Rev., 44, 287.

Curtin, J. (2016). Australia. European Journal of Political Research Political Data Yearbook, 55(1), 14-21.

Fenna, A. (2012). Centralising dynamics in Australian federalism. Australian Journal of Politics & History, 58(4), 580-590.

Harris, B. (2013). A new constitution for Australia. Routledge.

Keyzer, P. (2013). Principles of Australian constitutional law. Routledge.

Rasnic, C. D. (2016). The Constitution of the Commonwealth of Australia. International Journal of Constitutional Law, 14(4), 1038-1043.

Ratnapala, S., & Crowe, J. (2012). Australian Constitutional Law: Foundations and Theory (pp. 1-466). Oxford University Press.

Saunders, C., & Stone, A. (Eds.). (2018). The Oxford Handbook of the Australian Constitution. Oxford University Press.

Williams, G., Blackshield, A., Brennan, S., & Lynch, A. (2014). Australian Constitutional Law and Theory: Commentary and Materials. Federation Press.

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