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Resolving Conflicts of Laws

Resolving Conflicts of Laws

ISBN 9781862878259
Publisher Federation Press
Author(s)
Publication Date
Overview
Resolving Conflicts of Laws was cited 6 times by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011). An important feature in all legal systems, but especially in federations whose polities have overlapping legislative powers, is that those laws regularly conflict - or at least are claimed to conflict. Any coherent legal system must have principles for resolving such conflicts. Those principles are of immense practical as well as theoretical importance. This book, which straddles constitutional law and statutory interpretation, describes and analyses those principles. This book does not merely address the conflicts between Commonwealth and State laws resolved by the Constitution (although it does that and in detail). It analyses the resolution of all of the conflicts of laws that occur in the Australian legal system: conflicts between laws enacted by the same Parliament and indeed within the same statute, conflicts between Commonwealth, State, Territory, Imperial laws and delegated legislation. After identifying the laws in force in Australia, the chapters deal with: conflicts in laws made by the same legislature, focussing on the interpretative process of statutory construction; repugnancy, a doctrine with continuing vitality in the areas of s79 of the Judiciary Act, delegated legislation and Territory laws; conflicts between laws of the Commonwealth and State laws, proposing that the categories of inconsistency (commonly three: direct, indirect and "covering the field") are best seen aspects of a single constitutional concept; conflicts between the laws of two States, and conflicts involving the laws of the self-governing Territories
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