A critical analysis of the decision in Momcilovic and the issue of inconsistency between Commonwealth and State Laws
Introduction
The interpretation of what it means for a State law to be ‘inconsistent’ with a Commonwealth law has drastic consequences on the division of law-making powers in Australia. This is because it has the ability to narrow or eliminate the States’ capacity to legislate on certain matters where a Commonwealth law exists. The notion of inconsistency was recently revisited in Momcilovic v The Queen where the High Court held, by a 6:1 majority, that there was no inconsistency between the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and the Criminal Code 1995 (Cth). This paper will contend that the reasoning adopted…show more content… Gummow J held that the difference in penalties only gave rise to a possibility of inconsistency arising where a defendant had been convicted of one offence and not the other. However, this future possibility of inconsistency was negated by the operation of s 4C(2) of the Crimes Act 1914 (Cth) which effectively caused the Commonwealth offence to “withdraw pro tanto.” Crennan and Kiefel JJ held that a difference in penalties only gave rise to an inconsistency where the Commonwealth Act was enacted for a different purpose to the State Act. As the Criminal Code was enacted in order to aid in the prosecution of drug trafficking offences in Australia it was held to be parallel to the aims of the Drug Act and no inconsistency could arise between the two different penalties. The flaw in both Gummow J and Crennan and Kiefel’s JJ reasoning is highlighted by the fact that an offender convicted under the Criminal Code when compared to an offender convicted under the Drugs Act, with exactly the same set of circumstances, has the potential to receive a higher penalty. This goes against the fundamental principle of equality before the law, upon which our legal system is based upon. Hayne J considered this issue and stated that “the rules that make up the law… must speak as a single coherent whole” in order to ensure that all abide by the same rules and are processed equally. The majority justice’s motivation to preserve both State and Commonwealth powers by allowing the parallel laws to exist has caused an injustice to arise where offenders can be sentenced to harsher sentences dependent on whether state or federal agents
