In Rizeq v Western Australia (‘Rizeq’), the High Court seized the opportunity to resolve some of the doubts that had “regrettably” (at [39]) arisen concerning the operation of s 79 of the Judiciary Act 1903 (Cth). However, it is rarely possible for one case to solve all jurisprudential problems arising in a complex area of law. As such, other doubts remained. One lingering difficulty was the precise nature of the test imposed by s 79(1) in holding that certain State and Territory laws shall be binding on courts exercising federal jurisdiction “except as otherwise provided by the Constitution or the laws of the Commonwealth”.  What does that formulation mean? How does it compare with the methodology for discerning inconsistency between State and Commonwealth laws under s 109 of the Constitution?

This issue, not addressed in but brought into sharper focus by the Court’s reasons in Rizeq, was recently confronted by the six-member plurality in Masson v Parsons (‘Masson’). Their Honours relevantly concluded that “[t]he meaning of the expression ‘otherwise provided’ in s 79(1) of the Judiciary Act is … to be equated with the concept of inconsistency in s 109 of the Constitution” (at [43]). That holding has streamlined the approach to be taken in two contexts that might appear quite different on their face: the first, a constitutional analysis of whether Commonwealth law prevails over State law for the purposes of s 109; and the second, a question of statutory interpretation (albeit underpinned by constitutional elements) requiring the identification of conflicts that prevent State and Territory laws from being picked up and applied in federal jurisdiction within the meaning of s 79. However, the convergence of these two approaches in Masson arguably aligns with the Court’s significant reorientation of the purpose and operation of s 79 in Rizeq.

The decision in Masson

Masson is an important case for various reasons, not least of all for the Court’s acceptance that the term “parent” within the Commonwealth statutory scheme for the making of parenting orders accommodates a person who is a parent according to ordinary, contemporary Australian understandings. Here, that included a man who provided his sperm to a friend so that she could conceive a child, on the understanding that he would be the child’s father; who maintained an extremely close relationship with the child even though the child lived with the friend and her female partner; and who sought Family Court orders sharing parental responsibility between himself and the two women.

For present purposes, the decision can be summarised relatively shortly. Section 14(2) of the Status of Children Act 1996 (NSW) created an “irrebuttable” presumption (see s 14(4)) that a man was not the father of a woman’s child if the woman became pregnant through a fertilisation procedure using the man’s sperm and the man was not the woman’s husband. The question for the Court was whether s 79(1) of the Judiciary Act picked up ss 14(2) and 14(4) and applied them to applications for parenting orders made under Pt VII of the Family Law Act 1975 (Cth), such that the appellant was irrefutably presumed not to be the father of his biological daughter.

The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ, Edelman J writing separately) unanimously answered that question “no”. The plurality held that:

  • s 79 was not capable of applying to ss 14(2) and 14(4), because those provisions were not laws regulating the exercise of jurisdiction (at [39]);
  • even if the provisions were properly to be viewed as laws binding on courts, they would not be picked up by s 79 as the Family Law Act had otherwise provided (at [41]); and
  • the provisions could not apply of their own force in federal jurisdiction as they were inconsistent with Pt VII Div 1 of the Family Law Act, and inoperative to that extent under s 109 of the Constitution, for the same reason that they would not be picked up by s 79 (at [49]-[52]).

Justice Edelman agreed that the State laws were not of a kind that would be picked up by s 79, and would instead apply of their own force, but were inconsistent with the Family Law Act (at [72]). However, his Honour expressed different views, consistent with his separate judgment in Rizeq, concerning the proper way to conceptualise the types of laws that attract s 79’s operation.

The “otherwise provides” test before Masson

Prior to Masson, the orthodox starting point for considering whether Commonwealth law has “otherwise provided”, such that a given State or Territory law is not picked up by s 79, was the judgment of Gleeson CJ and Gummow J in Northern Territory v GPAO (‘GPAO’) (at [78]-[81], Gaudron J and Hayne J agreeing at [135] and [254] respectively). Their Honours commenced the critical part of their analysis in that case by noting that the “objective of s 79” was to

facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself (at [80]).

In their Honours’ view, that objective led to the conclusion that the “notion of ‘inconsistency’ involved in the phrase ‘otherwise provided’ in s 79” was conceptually analogous to the “problem that arises by conflict between conflicting statutes having the same source” (at [80]). This differed from a situation of inconsistency between a law of a supreme legislature and one enacted by a hierarchically inferior legislature, in which the conflict is resolved by giving primacy to the former (at [51], [80]). In other words, under s 79, “[t]he law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth” (at [80]). Chief Justice Gleeson and Gummow J concluded that the “otherwise provides” test in s 79 required the Court to ask whether the operation of the federal law so reduced the ambit of the State or Territory law that the former was “irreconcilable” with the latter (at [81]). Their Honours’ statement of the test was subsequently approved in Austral Pacific v Airservices Australia by Gleeson CJ, Gummow and Hayne JJ, who emphasised that s 79 should not be understood by recourse to the doctrine of s 109 inconsistency then described as “covering the field” inconsistency (at [17]).

This understanding of s 79’s operation appeared to involve a narrower test for inconsistency than the test under s 109 (see Geoffrey Lindell, Cowen and Zines’s Federal Jurisdiction in Australia (pp 370-71, referring to Butler v Attorney-General (Vic)). That is because the prism through which two apparently competing provisions of the same legislature are viewed is one of harmony (two laws operating alongside each other where possible because Parliament does not intend to contradict itself), rather than hierarchy (Commonwealth law trumping State/ Territory law where a conflict arises). It is not entirely evident from GPAO why Gleeson CJ and Gummow J considered that s 79 envisages the treatment of State and Territory laws as akin to federal provisions, and thus as occupying effectively the same status as the Commonwealth laws against which they are to be measured. But one explanation may lie in the view taken in various pre-Rizeq authorities that s 79 is directed towards telling courts exercising federal jurisdiction where they “shall go for the substantive law” (South Australia v Commonwealth, cited in GPAO at [30]) – and, relatedly, that the mechanisms in ss 79 and 80 of the Judiciary Act represented the only means by which State and Territory legislation could apply in federal jurisdiction (see Rizeq at [109]-[110], [115], [123] and James Stellios, ‘Choice of law in federal jurisdiction after Rizeq v Western Australia’ (2018) 46 Australian Bar Review 187 at 193). If the law applicable in federal jurisdiction is wholly federal, and s 79 operates by identifying and supplying elements of that single corpus of substantive and procedural law, it might be thought that this body of federal law is made most coherent by according equal treatment to all of its inputs (Commonwealth, State and Territory) and reconciling them where possible.

Whatever the rationale underpinning it, Gleeson CJ and Gummow J’s approach in GPAO led to some uncertainties. It was not clear exactly how the two tests for inconsistency differed in practice. Further, some later s 79 cases endorsed formulations that seemed functionally quite similar to the notion of indirect inconsistency under s 109, asking whether the relevant Commonwealth scheme was “complete upon its face” (R v Gee at [62]) or left “no room” (Bui v DPP(Cth) at [25]; Grant Samuel Corporate Finance v Fletcher at [8]) for the operation of State law.

The difficulties with Gleeson CJ and Gummow J’s approach arguably became even more acute following the Court’s significant reorientation of the purpose and operation of s 79 in Rizeq. After Rizeq, State and Territory laws that can operate independently of anything done by a court apply of their own force in federal jurisdiction, for the same reason that they apply in non-federal jurisdiction – “because they are laws” (Rizeq at [56]), and (as to the States) because ss 107-109 of the Constitution sustain State legislative power and State laws except to the extent that the latter are inconsistent with federal law (Rizeq at [25], [47]). For this reason, s 79 has only a limited operation. It fills a gap in the law, arising from the constitutional incapacity of any legislature aside from the federal Parliament to bind a court in the exercise of federal jurisdiction, by taking the text of a State/ Territory law governing a court’s powers in and manner of exercise of State/ Territory jurisdiction and applying it as Commonwealth law in federal jurisdiction (Rizeq at [32], [57]-[59], [63]-[64], [87], [103]). Against this backdrop, the law applicable in federal jurisdiction will always be a patchwork of (i) laws sourced from different polities in the Federation, yielding to those of the Commonwealth polity according to the supremacy principles fixed by covering clause 5 and s 109 of the Constitution; and (ii) State/ Territory laws given force by s 79 for the limited function just described. In these circumstances, it is hard to see why s 79 should be treated as according State law any higher status than it would receive in its interface with federal law for s 109’s purposes. Arguably, the whole patchwork should be woven by a common thread: the familiar principle that Commonwealth law prevails over State/ Territory law to the extent of any conflict.

Streamlining s 79 of the Judiciary Act with s 109 inconsistency

In Masson, the plurality rejected the proposition that the “otherwise provides” test in s 79 can usefully be guided by “the principles for resolving conflicts between statutes having the same source” (at [42]). Their Honours noted that such principles “proceed from the assumption that a legislature generally does not ‘intend to contradict itself’” and that conflicts should be resolved where possible by “adjusting the meaning of the competing provisions” (at [42]). However, they held that this analysis did not translate to the s 79 context for two reasons. First, “s 79(1) anticipates State laws regulating the exercise of State jurisdiction which, if picked up and applied in federal jurisdiction, would contradict laws enacted by the Commonwealth Parliament”, and expressly excludes those laws from having any “source in Commonwealth legislative power” (at [42]). Secondly, given that s 79 operates to pick up the text of a State law with its meaning unchanged, there is no mechanism by which the meaning of State law can be “adjusted” to avoid an inconsistency (at [42]).

The plurality acknowledged that ss 79 and 109 apply in different fields: the former operates only in an area of “exclusive Commonwealth legislative power” where State and Territory law cannot govern (at [43]). However, there was no reason for construing s 79 as “importing a more stringent test than the terms of s 109 … within their respective spheres of application” (at [43]). Rather, their Honours concluded, the “coherence of the body of law applicable in federal jurisdiction” was “maximised by treating the test for contrariety between Commonwealth and State laws applied to regulate the exercise of federal jurisdiction as identical to that between Commonwealth and State laws operating outside federal jurisdiction” (at [43]).

The plurality’s reasoning in Masson resolves the conceptual uncertainties that have attended the “otherwise provides” test since GPAO. A State provision regulating the powers of a court will be picked up and applied by s 79 in a case heard in federal jurisdiction unless it conflicts with federal law in the manner contemplated by s 109 of the Constitution. If the provision is not of a kind that binds a court, the very same principles will determine whether it applies of its own force as part of the composite body of federal and non-federal law applicable to the case. In part due to the shift effected in Rizeq, their Honours appear to have adopted a view of “coherence” that differs from that reflected in Gleeson CJ and Gummow J’s approach to s 79. Instead of pursuing consistency of treatment between federal and surrogate federal laws, the plurality has woven a common thread between all the interactions of Commonwealth and State law that take place in federal (and, indeed, non-federal) jurisdiction.

Concluding thoughts

Masson represents another step towards addressing unsettled aspects of the s 79 jurisprudence. Like Rizeq, however, it has not solved all problems. For example, the divergence between the plurality and Edelman J concerning the categories of laws that fall within s 79 reveals another fault line, originating in Rizeq, which may have implications in both choice of law and constitutional contexts (see Stellios, cited above, at pp 196-203). Such matters will have to be picked up again in another case.

Celia Winnett is a barrister at Sixth Floor Selborne Wentworth Chambers and a Fellow of the Gilbert + Tobin Centre of Public Law at UNSW Law.

Suggested citation: Celia Winnett, ‘Picking up where Rizeq left off: Masson v Parsons [2019] HCA 21, s 79 of the Judiciary Act and the “otherwise provides” test’ on AUSPUBLAW (24 July 2019) < in a new tab)>