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Resolving Commonwealth Ambiguity by Reference to State Laws

Published online by Cambridge University Press:  24 January 2025

R. P. Austin
R. P. Austin*
Affiliation:
University of Sydney
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Extract

It is common for courts interpreting words in Commonwealth statutes to invoke State law to clarify the meaning of those words. For example, if a Commonwealth statute uses the word “shareholder” without adequate definition, reference will be made to State law as to the meaning of that word.

How is this approach to be justified? Part of the answer is that reference to State law was intended by the Commonwealth Parliament: but where is that intention to be found? Specifically, are sections 79 and 80 of the Judiciary Act 1903-1969 (Cth) relevant?

Information

Type
Research Article
Information
Federal Law Review , Volume 6 , Issue 1 , March 1974, pp. 178 - 188
Copyright
Copyright © 1974 The Australian National University

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References

1 Nygh, Conflict of Laws in Australia (2nd ed. 1971) 786CrossRefGoogle Scholar.

2 (1958) 100 C.L.R. 32.

3 Id. 40.

4 (1937) 57 C.L.R. 514, especially 531-532.

5 [d. 547-548. Rich J. 543, found it unnecessary to comment on whether reference to State Law flowed from s. 56 or ss. 79 and 80. Evatt and McTiernan JJ. 551, found that s. 79 did not introduce the “general body” of N.S.W. law merely because the action happened to have been heard by the High Court in Sydney. They offered no further elaboration.

6 (1939) 39 S.R. (N.S.W.) 133.

7 Suehle v. The Commonwealth [1967] A.L.R. 572, 574.

8 (1939) 39 S.R. (N.S.W.) 133, 143.

9 [1967] A.L.R. 572,

10 Id. 573.

11 Id. 573.

12 Id. 574. This approach has been criticized by Lane in 41 A.L.J. 210.

13 (1965) 112 C.L.R. 295.

14 Id. 307. It is not certain that the liability arose under s. 56, but it certainly arose under Commonwealth law, id. 306.

15 Suehle's case, [1967] A.LR. 572, 574.

16 Phillips, “Choice of Law in Federal Jurisdiction” (1961) 3 M.U.L.R. 170Google Scholar, especially 188, 192, 352, thinks that this is the literal meaning of the words, though he raises questions of constitutional validity.

17 Suehle v. The Commonwealth [1967] A.L.R. 572, 574; but see Washington v. The Commonwealth (1939) 39 S.R. (N.S.W.) 133, 143-144. The precise point of time for determiniug State law is uncertain.

18 Lane, The Australian Federal System with United States Analogues (1972) 388-389Google Scholar.

19 Under Constitution ss. 75 and 76. The former section confers jurisdiction, whereas the latter merely authorizes Parliament to confer jurisdiction. Parliament has done so piecemeal in, e.g. the Judiciary Act, s. 30, and the Income Tax Assessment Act, s. 196.

20 (1937) 57 C.L.R. 514.

21 (1921) 29 C.L.R. 596, 599, 601.

22 (1937) 57 C.L.R. 514, 531-532. On appeal, none of Their Honours found it necessary to decide this point: 543 per Rich I., 547-548 per Dixon I., 550-551 per Evatt and McTiernan JJ. The doubt expressed by Higgins J. in the Lady Carrington case was also set aside by Dixon I. in Huddart Parker Ltd v. The Ship Mill Hill (1950) 81 C.L.R. 502, 507-508. Also Cohen v. Cohen (1929) 42 C.L.R. 91, 99; Bainbridge-Hawker v. Minister for Trade and Customs (1958) 99 C.L.R. 521, 536-537; Pedersen v. Young (1964) 110 C.L.R. 162; John Robertson & Co. v. Ferguson Transformers (1973) 47 A.L.J.R. 381, 389, 392.

23 (1953) 88 C.L.R. 168, 170.

24 Lane, op. cit. 389, n. 23. Professor Lane's use of the word “literal” suggests that in his view, the words “federal jurisdiction” literally apply to the High Court's whole appellate jurisdiction, but that a court may adopt something other than a literal approach where such an approach would mean that the High Court's unifying force would be inhibited.

25 Lane, op. cit. 543.

26 Felton v. Mulligan (1971) 45 A.L.J.R. 525, 527 per Barwick C.J.

27 Lane, op. cit. 543.

28 Of course, if the statute was enacted after coming into operation of ss. 79 and 80, and Parliament has, by express words or necessary implication, exhibited an intention inconsistent with the application of ss. 79 and 80, those sections will be inapplicable in any case.

29 Apart from the more general constitutional difficulties raised by Phillips, “Choice of Law in Federal Jurisdiction” (1961) 3 M.U.L.R. 170, 348Google Scholar.

30 (1928) 41 C.L.R. 442.

31 Id. 457 per Higgins J. Also 464 per Starke J. Also Davies v. State of Western Australia (1904) 2 C.L.R. 29.

32 Both sections prohibit the same kind of action: Lane, op. cit. 61.

33 Lane, op. cit. 62.

34 The situation is thus analogous to Colonial Sugar Refining Co. Ltd v. Irving [1906] A.C. 360, rather than Conroy v. Carter (1968) 118 C.L.R. 90.

35 (1943) 318 U.S. 363.

36 Suehle v. The Commonwealth [1967] A.L.R. 572, 574.

37 Nygh, op. cit. 780, citing Parente v. Bell (1967) 41 A.L.J.R. 52. In that case Windeyer J. did not expressly refer to s. 79 or s. 80, but followed an “unusual” decision of the Supreme Court of Queensland on the basis that the Supreme Court's reasoning was “highly persuasive”, and “sitting as I am in Queensland to exercise the original jurisdiction of [the High] Court, I think I need not further consider the question”. Note, 41 A.L.J. 210, 213 (P.H.L.).

38 As pointed out supra p. 183, it appears that the High Court sitting as a court of appeal on questions of domestic State law is not exercising federal jurisdiction within ss. 79 and 80.

39 (1937) 57 C.L.R. 514.

40 Id. 547-548.

41 One of the issues in Jackson v. Jackson (1972) 29 D.L.R. (3d) 641, 647, was whether the meaning of the phrase “children of the marriage” in the federal Divorce Act, 1967-1968, which authorized courts to order maintenance in respect of children of the marriage was affected by the Age of Majority Act, 1970, of British Columbia, which reduced the age of majority “for the purposes of any rule of law” from 21 to 19 years. The Supreme Court of Canada held that the words “children of the marriage” in the federal Act di.d not create any age barrier, and were capable of applying to a child of any age who fulfilled the conditions laid down in s. 2 of the federal Act. Provincial laws as to age of majority were therefore irrelevant. It was thus not necessary for the Court to determine whether a provincial law could have been invoked had the federal Act been ambiguous, and it did not do so, id. 650. However, both Ruttan J. of the British Columbia Supreme Court (1971) 21 D.L.R. (3d) 112 and the British Columbia Court of Appeal (1971) 22 D.L.R. (3d) 583 held that the provincial Act deprived the Court of jurisdiction to order maintenance under the federal Act in respect of a nineteen-years-old child.

42 However, in Jackson v. Jackson, supra n. 41, both the British Columbia Supreme Court and the British Columbia Court of Appeal applied a 1970 provincial Act in construing a 1967 federal Act. The judgments do not directly indicate the basis for doing so, but perhaps they relied upon the Canadian Interpretation Act, s. 10 which states that “the law shall be considered as always speaking”.

43 Austin, “The Tax Treatment of Dividends in a Deceased Estate” (1974) 3 Australian Tax Review 3Google Scholar.