Momcilovic and Section 109 of the Australian Constitution

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Section 109 of the Commonwealth Constitution1 exists to resolve conflicts

between inconsistent Commonwealth and State laws. In Momcilovic2, the High

Court considered whether the State law3 was inconsistent with the

Commonwealth law4 (Code) to enliven s 109. The majority view of Crennan

and Kiefel JJ, and Gummow J did not find inconsistency, whereas Hayne J

dissented. This essay will analyse Their Honours reasoning and contends that

Hayne Js approach should be preferable for determination of inconsistent

Commonwealth and State laws.

In Momcilovic, Vera Momcilovic was convicted in the County Court of

Victoria for drug offence under the Drugs Act5. The Code had jurisdiction for

the same subject matter because Momcilovic was a resident of Queensland.6

The High Court determined if the following arguments gave s 109 operation:7

1. Different standards and burdens of proof; and

2. Different penalty provisions and methods of trial8.

1 Commonwealth of Australia Constitution Act (Cth). 2 Momcilovic v The Queen [2011] HCA 34 (8 September 2011). 3 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC. 4 Criminal Code Act 1995 (Cth) s 302.4. 5 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC. 6 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [139]. 7 Victorian Government Solicitors Office, Case Note Momcilovic v The Queen [2011] HCA 34 (8 September 2011) (Case Note, Victorian Government Solicitors Office, September 2011) 3. 8 Different methods of trial are also referred to as different sentencing regimes.

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I firstly refer to Hayne Js judgement. His Honour only considered the

second argument for inconsistency9, and had found inconsistency.

Hayne J discussed six principles from [314]-[319] to reach no direct

inconsistency. Hayne J suggests the test is10 to determine the reach and

operation of the federal lawby reference to the language, purpose and scope

of the law [and] by reference to considerations of consistency11.

Hayne J firstly identified that the law of the Commonwealth and the

law of the State were both statements of a norm of conduct and a

prescription of penalty12; that is both laws are of the same subject matter.

His Honour then employed Dixon Js test, being does the federal law

alter, impair or detract13 the state law, which he answered affirmatively. This

was a test for direct inconsistency, and Hayne J referred to Dixon J in Ex parte

McLean14 at [326] as authority to emphasise existence of inconsistency for

different sanctions on laws of the same subject matter. Here, the consequences

of breach depended upon the law the charge was brought under, hence

inconsistent laws.15

9 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [303]. 10 Ignoring the validity of the law in question as it was not in contention. 11 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [315]. 12 Ibid [292]. 13 Ibid [317]. 14 Ex Parte McLean [1930] HCA 12 (6 June 1930). 15 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [284].

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The approach by Hayne J is favourable in determinations of s 109. His

Honour emphasises that there should only be one body of law.16 It is vital for

citizens, whom which Parliament are a representative of, to know what the law

of the day is17, by understanding what the judiciary constructs as the scope and

purposes for Commonwealth and State laws, in order to maintain confidence in

the legal system.

Judicial findings should only be constructed and should not be

commanded by Parliament in recognition of separation of powers.18 Judges are

required to use external legislation and relevant prescribes in order to construct

ss 71AC and 302.4.19 Hayne J had rightly rejected submissions by Parliament

that commanded the legislative intention of s 302.4.20 If it were otherwise,

Parliament would have power to sway the determination of cases, thus

undermining the role of the judiciary.21 A court is to judge in accordance with

the law, and are guided by/representative of the values of the society of the

day.22

In my interpretation of [357], it is important to have both simultaneous

obedience and operation of the law23 because it provides legal protection by

16Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [283]. 17 Geoffrey Lindell, Grappling with inconsistency between Commonwealth and State legislation and the link with statutory interpretation (2005) 8 Constitutional Law & Policy Review 26. 18 Stephen Gageler, Legislative Intention (Speech delivered at the 20th Lucinda Lecture, Monash University, 15 September 2014) 3. 19 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [288]. 20 Ibid [307] 21 Stephen Gageler, Legislative Intention (Speech delivered at the 20th Lucinda Lecture, Monash University, 15 September 2014) 41. 22 Stephen Gageler, Legislative Intention (Speech delivered at the 20th Lucinda Lecture, Monash University, 15 September 2014) 23. 23 Operation refers to the enforcing of consequences.

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advocating uniform sentencing. The test for direct inconsistency highlights the

reality that authorities have discretion between Commonwealth and State laws.

Authorities should not have that discretion. This ensures public confidence in

the legal system, because prosecutors for the Sate and the Commonwealth

should not be laying the charges upon whim or fancy.24 The discretion is for

the judiciary alone.25

Now consider Gummow J. His Honour answered both questions before

the Court and found no indirect inconsistency for both.26

His Honour found that s 527 did not apply to the charge under s 71AC.28

Since s 5 was not applicable, so the argument fell.

Gummow J then considered the second question29, explaining his

course at [258]. The first task is to construe the Commonwealth law in

accordance with that body of doctrine. Only then would it be appropriate to

find if State law is inconsistent with Commonwealth law. Gummow Js

approach is similar to Hayne Js course.

24 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [359]. 25 Ibid [313]. 26 Ibid [207]. 27 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5. 28 Concerning the first question for different standards and burdens of proof. 29 Concerning different penalties and different methods of trial.

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Gummow J rejected direct inconsistency by comparison of the

elements between the two laws in question.30 A law is not confined to one

section, but requires composites of other provisions to give meaning to that

section.31 Accordingly, the different penalties do not automatically render the

Commonwealth and State laws inconsistent.

Gummow J at [241] found the simultaneous obedience test to be

inadequate for s 109. The notion of obedience concerned legally imposed

duties by two legislatures, meaning s 109 limited State legislative powers,

contrary to our understanding of sovereignty. His Honour instead tested

operational inconsistency.

Initially sections 71AC and 302.4 were operationally inconsistent

because the inconsistency arises upon the sentencing of those convicted; that is

inconsistency only upon exercise of the law32. Ultimately there was no

inconsistency because His Honour saw the safeguard against double

punishment as sufficient to prevent inconsistencies in penalty and sentencing.33

Under common law principle, Momcilovic would be unlikely to face further

federal prosecution (following State prosecution) for the same conduct. Even if

otherwise, s 4C(2)34 would intervene to prevent injustice, thus preventing

inconsistency in penalty and sentencing.35

30 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [206]. 31 Ibid [237]. 32 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [249]. 33 By not being punished twice, there is only one law in operation and hence no inconsistency

of concurrently operating laws. 34 Crimes Act 1914 (Cth) s 4C(2). 35 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [255].

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I agree with Gummow Js approach to the first question. At [273], His

Honour explained the exclusion of a s 5 equivalent in the Code was patched

by State law. The construction evinced Commonwealth Parliaments intention

for concurrent federal and state laws. This is good reconciliation to allow the

State and Commonwealth laws to operate concurrently, particularly because s

5 and the Commonwealth were not inconsistent.

Gummow J then constructs the legislation in the same manner as

Hayne J for the second question. My criticism is that authorities are still left

with discretion between State and Commonwealth legislation. Gummow J has

undermined the urge for creating uniformity in criminal penalty and

sentencing.36 Furthermore, to rely on other barring provisions is a complex and

only temporal solution because a Commonwealth Parliament could potentially

legislate to allow operation of one desired law at any one instance.

Finally consider Crennan and Kiefel JJ. Their Honours found no

indirect inconsistency following the covering the field37 test.

Crennan and Kiefel JJ found s 5 was not applicable to the definition of

s 71AC, thus is irrelevant and rejected.38

36 Dick, Tim, Uniform criminal code urged for states, The Sydney Morning Herald (online), 9 January 2007 < http://www.smh.com.au/news/national/uniform-criminal-code-urged-for-

states/2007/01/08/1168104923405.html?s_cid=rss_smh> 37 Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 (19 April 1926) [489]. 38 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [633].

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For the second question, Crennan and Kiefel JJ posed the test as Was

the Commonwealth coverage of the subject matter complete, exhaustive or

exclusive?39Their Honours noted no prima facie presumption that the

Commonwealth (as superior legislature) intended to exclude State legislative

power.40

Crennan and Kiefel JJ constructed the Commonwealth coverage by

reference to the context in which the Code exists. The Commonwealth criminal

law cannot operate alone, requiring the cooperation of State laws to enact

purposes of criminal justice.41 Although not determinative, Their Honours

found the reality of federal and state authorities operating together useful in

creating context for the coverage of the Code.

Next, [637] explains inconsistency is not determined by different

penalties and sentencing regimes. Their Honours relied on authority in The

Kakariki42 to suggest that authorities are not under a duty to prosecute every

case, and the power to prosecute is not intended to be exclusive.43

Crennan and Kiefel JJ made it certain at [655] that different methods of

trial44 cannot give rise to inconsistency. This is unavoidable and inherent to

39 Ibid [637]. 40 Ibid [643]. 41 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [653]. 42 Victoria v Commonwealth ("The Kakariki") [1937] HCA 82 (17 December 1937) [631] 43 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [648] 44 Including different sentencing regimes.

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having constitutional powers for the Commonwealth and States to legislate on

the same subject matter.

The same criticisms of Gummow Js reasoning for the second question

apply.

Additionally, Their Honours suggest that different sentencing regimes

cannot create inconsistency for the purposes of s 109, even if there were no

safeguards to prevent double punishment for example. This extends beyond

Gummow Js approach, and is dangerous because it will remove a grounds of

appeal should there be an error in the exercise of sentencing. The proposition is

over-emphasising the federal supremacy45 by giving Commonwealth

Parliament looser rule in determining the standards for trial and sentencing as

it cannot be challenged.

Finally, statements of intention should have no effect. It so happened

that s 300.4 was in accord with the construction and thus Their Honours had

not found against the statement of intention.46 A statement of intention in

accord with constructed intention, if given effect, would imply that Parliament

has a limited ability to influence judicial interpretation, even if that intention is

valid. If legislation relies on statements of intention to fill any drafting

45 Arun Sagar, Federal Supremacy and the Occupied Field: A comparative Critique (2013) 43 Publius: The Journal of Federalism 254. 46 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [654].

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deficiencies, the test of covering the field may be misapplied from incorrect

implications drawn from such statements. The exercise of interpretation should

be free of Parliamentary intent, regardless of how compliant to judicial

findings.

This essay has summarised the judgements of Gummow J, Crennan and

Kiefel JJ, and Hayne J, and highlighted guiding points in determination of

questions regarding s 109. Their Honours each applied different tests in for

direct and indirect inconsistency. This essay has found Hayne Js minority

view to be the preferable. The structure of our government following

federalism, giving Commonwealth and State Parliaments certain concurrent

powers, makes inconsistencies unavoidable. Hayne Js approach provides a

better route for maintaining public confidence, in the balance of ensuring

constitutional exercises of Commonwealth and State powers.

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Bibliography

A. Articles/Books/Reports

Finnis, John Mitchell, Separation of Powers in the Australian Constitution

(1968) 3 Adelaide Law Review 159

Joseph, Sarah, and Melissa Castan, Federal Constitutional Law: A

Contemporary View (Thomson Reuters (Professional) Australia Limited, 4th

ed, 2014) 271

Lindell, Geoffrey, Grappling with inconsistency between Commonwealth and

State legislation and the link with statutory interpretation (2005) 8

Constitutional Law & Policy Review 25

Sagar, Arun, Federal Supremacy and the Occupied Field: A comparative

Critique (2013) 43 Publius: The Journal of Federalism 251

Secher, Ulla, The Concept of Operational Inconsistency in Australia:

Implication for Native Title the Common Law and Statutory Positions Part

1 (2010) 18 Australian Property Law Journal 150

B. Cases

Clyde Engineering Co Ltd v Cowburn (1926) HCA 6 (19 April 1926)

Ex Parte McLean [1930] HCA 12 (6 June 1930)

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Victoria v Commonwealth ("The Kakariki") [1937] HCA 82 (17 December 1937)

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Viskauskas v Niland [1983] HCA 15 (18 May 1983)

C. Legislation

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Crimes Act 1958 (Vic)

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

D. Other

Dick, Tim, Uniform criminal code urged for states, The Sydney Morning

Herald (online), 9 January 2007 <

http://www.smh.com.au/news/national/uniform-criminal-code-urged-for-

states/2007/01/08/1168104923405.html?s_cid=rss_smh>

Gageler, Stephen, Legislative Intention (Speech delivered at the 20th Lucinda

Lecture, Monash University, 15 September 2014)

Riordan, Jaani, Constitutional Law Notes, Jaani.net (1 November 2005) <

http://www.jaani.net/resources/law_notes/constitutional_law/>

Victorian Government Solicitors Office, Case Note Momcilovic v The

Queen [2011] HCA 34 (8 September 2011) (Case Note, Victorian

Government Solicitors Office, September 2011)

Documents

Momcilovic and Section 109 of the Australian Constitution