The Federation Press

Resolving Conflicts of Laws

Overview

Resolving Conflicts of Laws was cited 6 times by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011).

An important feature in all legal systems, but especially in federations whose polities have overlapping legislative powers, is that those laws regularly conflict — or at least are claimed to conflict. Any coherent legal system must have principles for resolving such conflicts. Those principles are of immense practical as well as theoretical importance. This book, which straddles constitutional law and statutory interpretation, describes and analyses those principles.

This book does not merely address the conflicts between Commonwealth and State laws resolved by the Constitution (although it does that and in detail). It analyses the resolution of all of the conflicts of laws that occur in the Australian legal system: conflicts between laws enacted by the same Parliament and indeed within the same statute, conflicts between Commonwealth, State, Territory, Imperial laws and delegated legislation.

After identifying the laws in force in Australia, the chapters deal with:

  • conflicts in laws made by the same legislature, focussing on the interpretative process of statutory construction;
  • repugnancy, a doctrine with continuing vitality in the areas of s79 of the Judiciary Act, delegated legislation and Territory laws;
  • conflicts between laws of the Commonwealth and State laws, proposing that the categories of inconsistency (commonly three: direct, indirect and “covering the field”) are best seen aspects of a single constitutional concept;
  • conflicts between the laws of two States, and
  • conflicts involving the laws of the self-governing Territories

Reviews

This must surely be one of the most scholarly yet useful law books published in Australia this year.The book is not, although its title might suggest otherwise, a book on conflict of laws or private international law or choice of law. Rather it is an analysis of how courts and lawyers must approach problems that are created when two or more laws might each be construed as covering a situation yet their application will lead to different results. The basic approach is always to see if the various statutory provisions can be read together. However, that will not necessarily be the case, and if so, what then? ... The work deals both with common problems and with problems that will rarely occur. ...The work is very readable yet deals with the topic in a profound way. I have already cited it in a judgment as has one of my colleagues. - Mr Justice P W Young, Australian Law Journal, (2011) 85 ALJ, 455

Table of Contents

Fundamental concepts
Australian sources of law
Resolving conflicts between laws having the same source
Repugnancy: A single test for legislative conflict
Inconsistent Commonwealth and State laws
Conflicts between State laws
Conflicts involving Territory laws
Index

Of interest...