law of a State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall to the extent of the inconsistency be invalid. With respect, however, to matters within the exclusive competence of the Federal Parliament no question of conflict can arise, inasmuch as from the point at which the quality of exclusiveness attaches to the Federal power the competency of the State is altogether extinguished. It follows that when a State attempts to give to its legislative authority an operation which, if valid, would fetter control, or interfere with, the free exercise of the legislative power of the Commonwealth, the attempt unless expressly authorized by the Constitution, is to that extent invalid and inoperative." Per GRIFFITH, C.J. in D'Emden v. Pedder, (1904) 1 C.L.R., at p. 110.

"In our judgment the provisions of section 109 have no application to the present controversy (State and Federal instrumentalities) but were enacted for a different purpose. They apply to matters which, upon the face of them, are within the common ambit of power of both Commonwealth and State Legislatures, but do not apply either to State legislation or to Commonwealth legislation, where either would, if valid, be inconsistent with the express or implied provisions of the Constitution itself. In other words section 109 only applies in cases of concurrent legislative jurisdiction." Per GRIFFITH, C.J. in Baxter v. Commissioner of Taxes, New South Wales, (1907) 4 C.L.R., at p. 1129.

When Federal Law prevails.

"Section 109 of the Constitution itself is explicit. The true way to test the argument in the present case is to ask whether the Federal Act would be valid supposing the State Act were nonexistent. If it would, then, in case of inconsistency the State law, whatever it may be, under whatsoever power it is enacted, on whatsoever subject, must to the extent of the inconsistency be invalid. This constitutional provision is essential to the very life of the Commonwealth; a decision in favour of the respondents on this point destroys the supremacy of Federal law, which alone has held the American union intact, has preserved the character of the Canadian Dominion, and can uphold the Australian Constitution." Per ISAACS, J. in the Federated Saw Mill &c. Employees of Australasia v. James Moore & Son Proprietary Ltd., (1909) 8 C.L.R., at p. 530.

Judicial "Awards" and " "laws 99

distinguished.

In the Whybrow Special Case, (1910) 10 C.L.R., 292, the question was raised whether an award by the Commonwealth Conciliation and Arbitration Court would, in case of inconsistency, prevail over the determination of a wages board empowered by a State Statute law to fix a minimum rate of wages.

The Chief Justice (Sir SAMUEL GRIFFITH) said :—“ The notion of any one person or set of persons being set up in a civilized country with authority to supersede or abrogate any law of which he does not approve is to me so extraordinary that I can hardly conceive of any Legislature in full possession of its faculties setting up such an institution. If they did, to call such a process arbitration would be an irony not to be expected in a charter of government. Still less can I conceive of a number of sovereign States agreeing to a federation in which such a dispensing power might be conferred, not even upon the Federal Legislature, but upon an individual or individuals. But it is gravely said that the Constitution has done so. I think that very plain words would be necessary to bring about such a result. It certainly cannot be based upon the argument ab inconvenienti, which, indeed, tends wholly in the other direction. If the argument were accepted, the whole of the State laws regulating domestic industry, and a great part of the police laws, the need for which depends upon local circumstances of which the State Legislatures are the natural and appointed judges would be subject to the review of one or more individuals, who, unless endowed with more than human knowledge and wisdom. would be unable to discharge the function of so mighty an office'": 10 C.L.R., at p. 284.

Mr. Justice BARTON said :- "In the case of Huddart Parker & Co. Ltd. v. Moorhead, 8 C.L.R., 330, we were examining into the validity of some Federal enactments which assumed to regulate not merely external and inter-state trade, but also that trade which is confined within the limits of a State, and is reserved to the States as a subject of legislation; in that connection it was necessary to consider whether the power given by sub-section (xx.) of section 51 constituted an exception to this otherwise exclusive reservation to the States. Here the question is whether sub-section (XXXV.) constitutes an exception to the otherwise exclusive reservation to the States of a branch of their police power, namely, the power to

deal by legislation with their industrial affairs. The majority of this Court held there that any power must, in order to constitute the exception contended for, be couched in clear and unambiguous terms. In taking this view we held to that expressed by the Chief Justice, with whom my brother O'CONNOR, J., and I were in agreement in the Union Label Case (Attorney-General for New South Wales v. Brewery Employees' Union of New South Wales), 6 C.L.R., 469, at p. 503, as follows:- In my opinion, it should be regarded as a fundamental rule in the construction of the Constitution that when the intention to reserve any subject matter to the States to the exclusion of the Commonwealth clearly appears, no exception from that reservation can be admitted which is not expressed in clear and unequivocal words. Otherwise the Constitution will be made to contradict itself, which upon a proper construction must be impossible" 10 C.L.R., at p. 292.

Mr. Justice O'CONNOR said:-" The principles on which Statute is compared with Statute have no bearing upon the question whether a Commonwealth industrial award can or cannot stand against a State Statute. Within the field of Commonwealth power no State Statute can stand in the way of Commonwealth legislation. But outside that field the Commonwealth tribunal must obey the State law. The question of inconsistency, in the sense in which the words are used in the American decisions to which I have referred, cannot arise in cases where the Commonwealth industrial award is to be contrasted with the State Statute law to which it must conform" (1910) 10 C.L.R., p. 306.

Competition of Federal and State Laws.

The moment we depart from the clear terms of section 109 of the Constitution, there is nothing but chaos. Section 109 and covering clause (v.) form the keystone of the Federal structure, and if they are once loosened, Australian union is but a name, and will reside chiefly in the pious aspirations for unity contained in the preamble to the Constitution. Section 109 is not found in the American Constitution. But its additional insertion in our Constitution emphasizes the supremacy of Commonwealth laws. It is needless to say that to bring section 109 into operation the two competing laws must meet on the same field. If they are not on the same field they cannot collide; they cannot be inconsistent. They may be on the same field and yet not inconsistent, and in that

case both are valid; but if inconsistent, they must necessarily meet on the same field though enacted under widely differing powers. One must necessarily prevail, the only question being which. For answer there is only one source of direct authority, the Constitution, clause V., and section 109. Per ISAACS, J., in the Federated Saw Mill &c. Employees of Australasia v. James Moore & Son Proprietary Ltd., (1909) 8 C.L.R., 535-6.

Provisions referring to Governor.

110. The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

State may surrender territory.

111. The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

States may levy charges for inspection laws.

112. After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection 180 laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

Meaning of.

§ 180. "INSPECTION LAWS."

The object of inspection laws is to improve the quality of articles produced by the labour of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the States. Per MARSHALL, C.J., in Gibbons v. Ogden, 9 Wheat., at p. 203.

Section 92 of the Constitution must, on any construction, include a prohibition of inter-state customs duties and the like, and section 112 plainly reads as authorizing the imposition by a State of certain charges which are not within the prohibition. Section 112 clearly recognizes State inspection laws as outside the prohibition. But if any attempt is made to convert them into instruments for the fettering of inter-state commerce, the deterrent provisoes that the net produce of inspection charges shall be for the use of the Commonwealth, and that the Parliament of the Commonwealth may annul such laws altogether, afford two effective safeguards. The truth is that, whether the charges are made on goods inspected as they pass into or out of the State, they are not taxes but merely compensation for services rendered ": Per BARTON, J., in Duncan v. State of Queensland, (1916) 22 C.L.R., at p. 588.

"Inspection being a proper subject of State legislation, section. 112 merely makes it clear that the States may make charges for that service even at the ports and boundaries. That is merely a question of the most convenient place at which to perform the service. There were, at the time of the adoption of the Constitution of the United States, numerous laws of this class existent in the several States. There were similar laws in the Australian Colonies at the times of federation, and their. number has probably increased since. Instances are to be found in the laws for the inspection and grading of butter, an operation usually conducted at the ports before shipment. The charges referred to in section 112 are those imposed for such a service. Neither the laws nor the charges for the service rendered are in any sense regulations of external or inter-state trade, though they may have some remote influence on the one or the other" Per BARTON, J., in Duncan v. State of Queensland, (1916) 22 C.L.R., at p. 589.

What they Connote.

As to the argument based by counsel on section 112, that by assuming inspection laws to be valid, and by expressly conferring the power to impose inter-state inspection charges, the Convention did not mean by section 92 to do more than forbid inter-state duties I cannot accept it. It seems to me to be a fundamental error to suppose that inspection laws necessarily connote any obstruction or restriction on inter-state movement. They may obstruct or restrict and therefore the Federal Parliament has power