Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280 (18 May 1983)

HIGH COURT OF AUSTRALIA

VISKAUSKAS v. NILAND [1983] HCA 15; (1983) 153 CLR 280

Constitutional Law (Cth)

High Court of Australia
Gibbs C.J.(1), Mason(1), Murphy(1), Wilson(1) and Brennan(1) JJ.

CATCHWORDS

Constitutional Law (Cth) - Inconsistency between Commonwealth and State laws - Commonwealth and State laws prohibiting racial discrimination - Provisions for investigating complaints and taking remedial action - Anti-Discrimination Act 1977 (N.S.W.), SS. 7, 19, 113 - Racial Discrimination Act 1975 (Cth), ss. 6, 9, 10, 13, 21, 25 - The Constitution (63 & 64 Vict. c.12), s. 109.

HEARING

1983, March 15; May 18. 18:5:1983
CAUSE removed under the Judiciary Act 1902 (Cth), s. 40(1).

DECISION

May 19.
THE COURT delivered the following written judgment: -
The question for decision in these proceedings is whether the provisions of amended, are inconsistent with those of the Racial Discrimination Act 1975 (Cth) ("the Commonwealth Act"), as amended, and are accordingly invalid by reason of s. 109 of the Constitution. (at p284)

2. The proceedings, which were commenced in the Supreme Court of New South Wales, arose out of an incident which occurred on 27 November 1980 at the plaintiffs' hotel at Kempsey, when, so it is alleged, three persons ("the complainants") were refused service in the bar of the hotel on the ground of their race. On the same day the Commissioner for Community Relations ("the Commissioner"), appointed under s. 29 of the Commonwealth Act, was informed of the incident (although not by the complainants) and commenced an inquiry under s. 21(1)(b) of the Commonwealth Act. On 2 December 1980 each of the complainants wrote to the Counsellor for Equal Opportunity ("the Counsellor"), appointed under Pt VII of the State Act, complaining that unlawful discrimination based on race, and involving a contravention of ss. 7 and 19 of the State Act, occurred during the incident at the hotel. (The provisions of Pt VII of the State Act have been repealed by s. 5 and Sch. 3 of the Anti-Discrimination (Amendment) Act 1982 (N.S.W.) and the functions of the Counsellor have been transferred to the President of the Anti-Discrimination Board for the State of New South Wales. That Act, however, did not come into force until 20 December 1982.) On receipt of the complaints, the Counsellor commenced an investigation pursuant to s. 89 of the State Act. When, in December 1980, the Commissioner and the Counsellor each became aware that the other was investigating the incident, an officer of the Commissioner informed both the solicitor for the plaintiffs and the office of the Counsellor that the Commissioner had stayed his inquiry in order to allow the Counsellor the chance to resolve the matter by conciliation. Notwithstanding this statement, and later assurances by the Commissioner that he would withhold action to allow the matter to proceed under the State Act, the officers of the Commissioner did from time to time during 1981 attempt to effect a settlement of the matter between the plaintiffs and the complainants. Finally, on 27 April 1982, the delegate of the Commissioner advised that he had decided, in accordance with the power contained in s. 21(2)(b)(ii) of the Commonwealth Act, not to continue with his inquiries, because he had formed the opinion that the complainants did not desire that his inquiry be continued. The Counsellor also convened meetings between the plaintiffs and the complainants in pursuance of her duty to endeavour to resolve the complaint by conciliation - meetings were held on 10 February 1981 and 30 July 1982 - but the matter was not resolved. The present proceedings, by which declaratory and other relief is sought, were commenced by the plaintiffs against the Counsellor and the Anti-Discrimination Board for New South Wales on 12 December 1980. The proceedings were later discontinued against the second defendant. We have allowed an amendment to substitute the name of Carmel Josephine Niland for that of the Counsellor. The proceedings were eventually removed into this Court on the application of the Attorney-General for New South Wales made under s. 40 of the Judiciary Act. (at p285)

3. The object of the State Act is to render unlawful discrimination on grounds of race, sex, marital status and physical impairment (and, since the amendments made in 1982, intellectual impairment and homosexuality) and of promoting equality of opportunity between all persons. We, however, are concerned only with the statute in so far as it deals with racial discrimination. Various provisions intended to render racial discrimination unlawful appear in Pt II (ss. 7-22). The nature of racial discrimination within the meaning of the Act appears from s. 7(1) which provides as follows:
"A person discriminates against another person on the ground of his race

if, on the ground of -
(a) his race;
(b) a characteristic that appertains generally to persons of his race; or
(c) a characteristic that is generally imputed to persons of his race,
he -
(d) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race; or
(e) segregates him from persons of a different race."

Section 7(2) provides that a person discriminates against another person on the ground of race if he requires the other person to comply with a requirement or condition in certain circumstances. The following sections then prohibit racial discrimination of particular kinds - against applicants for employment and employees (s. 8), commission agents (s. 9) and contract workers (s. 10); in relation to partnerships (s. 10A) and trade unions (s. 11); by qualifying bodies (s. 12), employment agencies (s. 13); educational authorities (s. 17) and registered clubs (s. 20A); and in respect of access to places and vehicles (s. 18), provision of goods and services (s. 19) and accommodation (s. 20). Section 19, which deals with provision of goods and services, is as follows:
"It is unlawful for a person who provides, for payment or not, goods or services to the public or a section of the public to discriminate against

another person on the ground of his race -
(a) by refusing to provide him with those goods or services; or
(b) by refusing to provide him with goods or services -
(i) of the like quality;
(ii) in the like manner; or
(iii) on the like terms,
as are normally provided by that firstmentioned person to the public, or where the person requesting those goods or services belongs to a section of the public, to that section."

Certain particular and general exceptions to the provisions of Pt II appear in ss. 14-16, and 21-22. (at p286)

4. Part IX of the State Act provides a method for the enforcement of the substantive provisions of the statute, including those of Pt II. It is convenient to refer to the effect of these sections in their original form, i.e. as referring to the Counsellor, although as we have indicated, the word "President" must now be substituted for "Counsellor". Section 88 provides that within six months after a contravention of the Act has occurred a complaint may be lodged with the Counsellor, or the Registrar of the Equal Opportunity Tribunal constituted under Pt VIIA, in respect of a contravention of the Act, other than a contravention in respect of which a specific penalty is imposed. No specific penalty is imposed for a contravention of the provisions of Pt II. The Counsellor is obliged to investigate a complaint lodged with him or referred to him by the registrar (s. 89) unless he is satisfied that it is frivolous, vexatious, misconceived or lacking in substance or that for any other reason it should not be entertained (s. 90(1)). Where the Counsellor is of opinion that a complaint, other than one which he has declined to entertain under s. 90(1), may be resolved by conciliation, he shall endeavour to resolve it by conciliation (s. 92(1)), and for that purpose he is empowered to require the parties to appear before him (s. 92(2)). Where the Counsellor is of opinion that a complaint cannot be resolved by conciliation, or has been unsuccessful in his endeavours so to resolve a complaint, or is of the opinion that the nature of the complaint is such that it should be referred to the Tribunal, he shall refer it to the Tribunal (s. 94(1)). The Minister may refer any matter to the Tribunal for inquiry as a complaint (s. 95). The Tribunal shall hold an inquiry into each complaint referred to it (s. 96). Detailed provision is made as to the procedure to be followed. The Tribunal may make interim orders: s. 112. Section 113 provides as follows:

"After holding an inquiry, the Tribunal may -
(a) dismiss the complaint the subject of that inquiry; or
(b) find the complaint substantiated and do any one or more of the following: -
(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $20,000 (increased by the amendment in 1982 to $40,000) by way of compensation for any loss or damage suffered by reason of the respondent's conduct;
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations;
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(ix) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations; or
(v) decline to take any further action in the matter."

Section 123 provides that a contravention of the Act will attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by the Act. (at p287)

5. The Commonwealth Act was enacted to make provision for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the International Convention on the elimination of all Forms of Racial Discrimination. The provisions of the Act were discussed in the judgments in Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 , where a majority of this Court upheld the validity of the sections of the Commonwealth Act there impugned. Section 6 of the Commonwealth Act provides as follows:
"This Act binds the Crown in right of the Commonwealth and of each State, but nothing in this Act renders the Crown in right of the Commonwealth or of a State liable to be prosecuted for an offence."
Part II contains a number of sections which prohibit racial discrimination. Section 9(1) and (2) provide as follows:
"(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent of national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social,

cultural or any other field of public life.
(2) The reference in sub-section (1) to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes a reference to any right of a kind referred to in Article 5 of the Convention."

Article 5 of the Convention gives a wide and comprehensive description of the rights which are intended to be enjoyed without discrimination; that which is particularly relevant to the present case is stated in par. (f) as follows: "The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafes, theatres and parks." Section 10(1) provides as follows:
"If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin."
Section 10(3) renders s. 10(1) applicable to certain laws containing provisions relating to the management of the property of Aboriginals and Torres Strait Islanders. The following sections render unlawful particular sorts of discrimination, including discrimination relating to access to places and facilities (s. 11), land, housing and accommodation (s. 12), provision of goods and services (s. 13), trade unions (s. 14), and employment (s. 15). Section 13, which deals with provision of goods and services is as follows:
"It is unlawful for a person who supplies goods or services to the

public or to any section of the public -
(a) to refuse or fail on demand to supply those goods or services to another person; or
(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he would otherwise supply those goods or services,
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person." (at p288)

6. Under Pt III of the Commonwealth Act certain functions, including the function of inquiry (s. 20(a)), are conferred on the Human Rights Commission established under the Human Rights Commission Act 1981 (Cth). That function is to be performed on behalf of the Commission by the Commissioner, who in its performance is subject to the directions of the Commission (s. 20A(1) and (2)). The duty of the Commission in relation to inquiries is more specifically described by s. 21, which is in the following terms:

"(1) Where -
(a) a complaint in writing is made to the Human Rights Commission that a person has done an act that is unlawful by reason of a provision of Part II; or
(b) it appears to the Human Rights Commission that a person has done an act that is unlawful by reason of a provision of Part II,
the Human Rights Commission shall, subject to sub-section (2), inquire into the act and endeavour to effect a settlement of the matter to which the act relates.
(2) The Human Rights Commission may decide not to inquire into an act, or, if the Human Rights Commission has commenced to inquire into an act, decide not to continue to inquire into the act, if -
(a) a period of more than 12 months has elapsed since the act was done;
(b) the Human Rights Commission is of the opinion that -
(i) matter to which the act related was trivial; or
(ii) the person alleged to be aggrieved by the act does not desire that the inquiry be made or continued, as the case may be; or
(c) in a case where the inquiry results from a complaint to the Human Rights Commission, the Human Rights Commission is of the opinion that -
(i) the complaint was frivolous or vexatious or was not made in good faith;
(ii) the complainant does not have a sufficient interest in the subject-matter of the complaint; or
(iii) there is some other remedy that is reasonably available to the complainant.
(3) Where the Human Rights Commission decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made, the Human Rights Commission shall inform the complainant of that decision and of the reasons for that decision."

In that section reference to the Commission, other than the reference in par. (1)(a) and the reference first occurring in par. 2(c), are to be construed as references to the Commissioner (s. 20A(3)(a)). The Commissioner has power to direct persons to attend a compulsory conference (s. 22 and s. 20A(3)(b)). A person aggrieved by an act that he considers to have been unlawful by reason of a provision of Pt II may, subject to s. 24, institute a proceeding in relation to the act by way of civil action in a court of competent jurisdiction (s. 24(1)). No such proceeding shall be instituted unless the person aggrieved has first received a certificate signed by a member of the Human Rights Commission or by the Commissioner stating that the Commissioner or one of the other persons mentioned in the section has presided over a conference under s. 22(1) and has endeavoured to settle the matter, or that by reason of the failure of a person who has been given a direction under s. 22(1) to comply with the direction such a conference has not been able to be held, and that at the date of the certificate the matter has not been settled (s. 24(3)). The powers of the Court in a civil proceeding instituted under s. 24 are set out in s. 25, which reads as follows:
"Where, in a proceeding instituted under section 24, it is established to the reasonable satisfaction of the court that a person (in this section referred to as the defendant) has done an act (in this section referred to as the "relevant act") that is unlawful by reason of a provision of Part

II, the court may grant all or any of the following remedies:
(a) an injunction restraining the defendant from repeating the relevant act, from doing an act of a similar kind or from causing or permitting others to do acts of the same or a similar kind;
(b) an order directing the defendant to do a specified act, being an act directed to -
(i) placing a person aggrieved by the doing of the relevant act as nearly as practicable in the position in which he would be if the relevant act had not been done; or
(ii) otherwise avoiding a detriment to such a person resulting from the doing of the relevant act;
(c) if the doing of the relevant act resulted in the making of a contract or the relevant act was done in pursuance of a contract - an order cancelling the contract, varying any of the terms of the contract or requiring the repayment, in whole or in part, of an amount paid in pursuance of the contract;
(d) damages against the defendant in respect of -
(i) loss suffered by a person aggrieved by the relevant act, including loss of any benefit that that person might reasonably have been expected to obtain if the relevant act had not been done; and
(ii) loss of dignity by, humiliation to, or injury to the feelings of, a person aggrieved by the relevant act; and
(e) such other relief as the court thinks just."

Section 26 provides that except as expressly provided nothing in the Commonwealth Act makes it an offence to do an act or agree with another person to do an act that is unlawful by reason of a provision of Pt II. (at p291)

7. It may be that since 27 April 1982, when the Commissioner decided not to continue with his inquiries, the activities of the Counsellor under the New South Wales Act could not interfere or come into conflict with any exercise by the Commissioner of his functions under the Commonwealth Act. But that of course is not to the point if the laws themselves are in conflict. There is no direct inconsistency between the Commonwealth Act and the New South Wales Act - it is obviously possible for a person to obey both laws by refraining from committing any act of racial discrimination. However, it is now clearly established that there may be inconsistency within s. 109 although it is possible to obey both the State law and the Commonwealth law. In Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6; (1926) 37 CLR 466, at p 489 , Isaacs J. said that if "a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field". The nature of this test, which has since frequently been applied, was explained more fully by Dixon J. in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, at p 483 , where he said:
"When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v. Palmer [1926] HCA 50; (1926) 38 CLR 441 ). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal Statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."
Again, in Victoria v. The Commonwealth [1937] HCA 82; (1937) 58 CLR 618, at p 630 , Dixon J. said: ". . . if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent." (at p292)

8. Sometimes it may be difficult to ascertain the precise limits of the field which the Commonwealth legislation reveals an intention to cover, but that is not so in the present case. The Commonwealth Act deals with the subject of racial discrimination. It is true that it does so for the purpose of giving effect to the Convention, but the parties to the Convention "undertake to prohibit and to eliminate racial discrimination in all its forms": Art. 5; see also Art. 2. Parties to the Convention are to "assure to everyone within their jurisdiction effective protection and remedies": Art. 6. The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive, and this conclusion is supported by the fact that the provisions of Pt II (and especially those of s. 9) are expressed with complete generality, and by the further fact that s. 6 reveals an intention to bind the Crown in right of each State as well as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination. (at p292)

9. Even if that were not so, the provisions of s. 19 of the State Act deal with the subject of racial discrimination in relation to the provision of goods and services in terms substantially similar to those of s. 13 of the Commonwealth Act. The consequences provided by the respective Acts for breaches of the sections, although in some respects similar, are not the same. Under the Commonwealth Act the powers to make orders against a person who has committed an act of discrimination are vested in a court, in proceedings which can only be instituted upon a certificate under s. 24(3). Under the State Act, the powers are entrusted to a tribunal. Under the Commonwealth Act the court may award damages in respect of, inter alia, loss of dignity, humiliation and injury to feelings, and no limit is provided to the amount of damages that may be awarded. Under the State Act the damages that may be awarded are "for any loss or damage suffered by reason of the respondent's conduct" and there is a pecuniary limit. There are other differences in relation to powers and procedure, as the sections already mentioned reveal. At least with regard to the subject matter of racial discrimination in relation to the provision of goods and services, the test as stated in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 applies exactly - the two legislatures have legislated upon the same subject, and have prescribed what the rules of conduct will be and (if it matters) the sanctions imposed are diverse. Clearly in respect of that subject matter there is an inconsistency. (at p293)

10. The learned Solicitor-Generals for the States of New South Wales, Victoria and South Australia, in their arguments in support of the view that there was no inconsistency, sought to find indications in the Commonwealth Act of a recognition that State laws on the subject should remain effective and that the Commonwealth Act should be supplementary to or cumulative upon the State law. The first of the sections of the Commonwealth Act which was said to indicate that that statute did not intend to cover the whole field of racial discrimination was s. 9, which refers to racial discrimination in "any other field of public life," and which, it was said, left some areas of private life untouched, and available for regulation by State law. The words of s. 9(1) which refer to human rights and fundamental freedoms in (inter alia) any field of public life have a very wide scope, as is shown by s. 9(2) and Art. 5, and include rights which exist in the field of private life, such as the right to marriage and choice of spouse (Art. 5(d)(iv)). If the word "public" in s. 9 is intended to limit the extent to which the Commonwealth Act interferes with the private lives and affairs of individuals, that does not mean that the field of racial discrimination has not been covered, but rather that it has been covered in a way that recognizes that there are some limits to the extent to which the law should intrude upon personal privacy. The next section to which reference was made was s. 10(1), which overrides State laws under which persons of one race do not enjoy, or do not enjoy fully, rights which are enjoyed by persons of another race, and to s. 10(3), which makes specific provision in relation to laws dealing with Aboriginals and Torres Strait Islanders. It was submitted that it was significant that s. 10 did not specifically exclude the operation of State laws which themselves proscribe acts of racial discrimination, particularly since at the time when the Commonwealth Act was enacted there was in force in one State a law of that kind, namely the Prohibition of Discrimination Act 1966 (S.A.). The provisions of s. 10 were no doubt inserted in an endeavour to comply with the requirements of Art. 2(1)(c) of the Convention, which imposed upon the parties to the Convention an obligation inter alia "to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists." In any case the presence of s. 10, which undoes the effect of laws which themselves lead to discrimination, does not provide any indication that it was intended by the Parliament to leave the field open to State laws which prohibit racial discrimination and provide remedies for those persons who were discriminated against. Another provision on which reliance was placed was s. 21(2)(c)(iii), under which the Commissioner may decide not to continue with an inquiry when there is some other remedy that is reasonably available to the complainant. It is obvious enough that in some cases a person who complains of an act of racial discrimination may have a remedy in contract or in tort or under the provisions of a statute which validly deals with the act in question in some aspect other than its discriminatory quality. The fact that the Commissioner is given power to discontinue his inquiry where another remedy is available does not indicate that the Parliament contemplated that State law might validly enact remedies for persons affected by acts o racial discrimination as such. Finally, reference was made to s. 44(1) of the Commonwealth Act, which invests the several courts of the States with federal jurisdiction within certain limits and to s. 44(2) which provides that no proceedings under the act shall be instituted in a court of a State before a day to be fixed by proclamation but which concludes: "but nothing in this sub-section prevents a court from exercising jurisdiction in a matter arising under this Act in a proceeding instituted in that court otherwise than under this Act." Difficulties have in the past arisen, and indeed still arise, in determining when a matter arises under a law of the Commonwealth and the obvious purpose of the relevant words of s. 44(2) is to avoid the inconvenience that would arise if a State court, in the course of exercising jurisdiction in a matter which did not arise under the Commonwealth Act (e.g. in an action for tort or contract), was faced with the argument that the act which gave rise to the cause of action was an act of racial discrimination and that the matter accordingly arose under the Act. The section has nothing to say on the subject whether a State may provide remedies of its own for racial discrimination. (at p294)

11. Finally, it was submitted that Reg. v. Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211 provides authority for the view that there is no inconsistency between a State law and a Commonwealth law simply because each authorizes an inquiry into the same facts, and provides for punishment or other legal consequences for the same acts. That may be so where the statutes are made for different purposes - for example, a State law enacted for the protection of consumers might validly require an inquiry to be made into conduct, and might penalize conduct, which also amounted to racial discrimination. Gibbs C.J. expressed the relevant distinction in the following passage (1982) 152 CLR, at p 218 :
"However, the fact that a Commonwealth Act and a State Act impose different penalties for the same conduct does not necessarily mean that the laws are inconsistent. If the two laws are made for the same purpose - for example, if they prescribe substantially identical rules on a particular subject but with different penalties for contravention - it will be easy to conclude that the Commonwealth law covers the whole subject matter, and that there is an inconsistency: see Hume v. Palmer [1926] HCA 50; (1926) 38 CLR 441 ; and Reg. v. Loewenthal; Ex parte Blacklock [1974] HCA 36; (1974) 131 CLR 338 . However, the two laws may deal with different subject-matters, so that each may validly apply in relation to the same set of facts. Dixon J. gave an example of this in Ex parte McLean (1930) 43 CLR, at pp 485-486 , when he referred to the case of a shearer who unlawfully and maliciously wounded a sheep he was shearing and who might thereby commit an offence both against a Commonwealth award and against the State criminal law."
The distinction is also drawn by Mason J. (1982) 152 CLR, at pp220-221 and by Wilson J. (1982) 152 CLR, at pp 232-233 . In the present case, the State Act and the Commonwealth Act deal with inquiries which are made for the same purpose and the remedies they provide have the same character; the Acts both deal with the one subject - racial discrimination. (at p295)

12. Although, as we have indicated, we consider that Pt II of the State Act is inconsistent with the Commonwealth Act, it is sufficient for present purposes to hold that the provisions of s. 19 of the State Act, and those of other sections of the Act to the extent to which they relate to s. 19 and to complaints for a breach of that section, are inconsistent with the Commonwealth Act and to that extent are rendered invalid by s. 109. (at p295)

13. For these reasons we consider that the plaintiffs are entitled to succeed in these proceedings, and we would make the following declaration: (at p296)

14. Declare that the defendant has and had no power pursuant to the Anti-Discrimination Act 1977 (N.S.W.), as amended, to investigate, to conduct conciliation proceedings in respect of, or to refer to the Equal Opportunity Tribunal a complaint arising out of the conduct by the plaintiffs, or any of them, with respect to any refusal on 27 November 1980 to provide goods or services as alleged by the complainants. (at p296)

15. We would further order that the costs of and incidental to these proceedings be paid by the defendant to the plaintiffs. (at p296)

ORDER

Declare that the defendant has and had no power pursuant to the Anti-Discrimination Act 1977 (N.S.W.), as amended, to investigate, to conduct conciliation proceedings in respect of, or to refer to the Equal Opportunity Tribunal a complaint arising out of the conduct by the plaintiffs, or any of them, with respect to any refusal on 27 November 1980 to provide goods or services as alleged by the complainants.

Further order that the defendant pay the plaintiffs' costs of and incidental to these proceedings.