Momcilovic and Section 109 of the Australian Constitution

Section 109 of the Commonwealth Constitution 1 exists to resolve conflicts  between inconsistent Commonwealth and State laws. In Momcilovic In Momcilovic2, the High Court considered whether the State law 3 was inconsistent with the Commonwealth law4 (Code  (Code)) to enliven s 109. The majority view of Crennan and Kiefel JJ, and Gummow J did not find inconsistency, whereas Ha yne J dissented. This essay will analyse Their Honours’ reasoning and reasoning and contends that Hayne J’s J’s approach should be should be preferable for determination of inconsistent Commonwealth and State laws.

In Momcilovic In Momcilovic,, Vera Momcilovic was convicted in the County Court of Victoria for drug offence under the Drugs the  Drugs Act 5. The Code had 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 trial 8.

1

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

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I firstly refer to Hayne J’s 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 is 10 to determine the ‘reach and operation of the federal law…by reference to the language, pur  pose and scope of the law… [and] by reference to considerations of consistency’ 11.

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 penalty’ 12; that is both laws are of the same subject matter.

His Honour then employed Dixon J ’s test, being does the federal law ‘alter, impair or detract ’13 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].  Ignoring the validity of the law in quest ion 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]. 10

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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 is 17, 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 va lues of the society of the day. 22

In my interpretation of [357], it is important to have both simultaneous obedience and operation of the law 23 because it provides legal protection by

16

 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [283].  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 20 th 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 20 th Lucinda Lecture, Monash University, 15 September 2014) 41. 22 Stephen Gageler, ‘Legislative Intention’ (Speech delivered at the 20 th Lucinda Lecture, Monash University, 15 September 2014) 23. 23  Operation refers to the enforcing of consequences. 17

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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 5 27 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 question 29, 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 J’s approach is similar to Hayne J’s course.

24

 Momcilovic v The Queen [2011] HCA 34 (8 September 2011) [359].  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. 25

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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 law 32. 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].  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 i n 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]. 31

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I agree with Gummow J’s 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 Parliament’s intention for concurrent federal and state laws. This is good reconciliation to allow the State and Commonwealth laws to operate concurrently, particularl y 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 field 37  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-forstates/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].  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. 40

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having constitutional powers for the Commonwealth and States to legislate on the same subject matter.

The same criticisms of Gummow J’s 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 J’s 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 J’s minority view to be the preferable. The structure of our government following federalism, giving Commonwealth and State Parliaments certain concurre nt  powers, makes inconsistencies unavoidable. Hayne J’s 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, 4 th ed, 2014) 271 Lindell, Geoffrey, ‘Grappling with inconsistenc y 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-forstates/2007/01/08/1168104923405.html?s_cid=rss_smh> Gageler, Stephen, ‘Legislative Intention’ (Speech delivered at the 20 th 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 Solicitor’s Office, ‘Case Note –  Momcilovic v The Queen [2011 ] HCA 34 (8 September 2011)’ (Case Note, Victorian Government Solicitor’s Office, September 2011)

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