Introduction

The doctrine of repugnancy describes the situation where a State or territory law is rendered invalid for being inconsistent with paramount law. Paramount law emanates from the original source of State or territory legislative power. This, in the case of the Australian States, is the United Kingdom Parliament, in the past referred to as the Imperial Parliament. Paramount laws in relation to the States are United Kingdom or imperial laws intended to extend to the States. Consequently, where a State law is inconsistent with the terms of an imperial paramount law, the State law is void for repugnancy at common law. Since the Australia Acts 1986, the States are now bound by only three paramount imperial laws: the Commonwealth of Australia Constitution Act 1900 (Imp) which of course includes the Commonwealth Constitution; the Statute of Westminster 1931 (Imp); and the Australia Act 1986 (UK). Otherwise the doctrine of repugnancy was abolished in relation to the States by s 3(2) of the Australia Acts 1986.

In the case of the territories, their paramount laws are the enactments of the Commonwealth. Accordingly, territory laws are invalid for repugnancy so far as they are inconsistent with Commonwealth laws, in particular, their respective Self-Government Act. Territory laws are also invalid so far as they are inconsistent with the Commonwealth Constitution – an imperial law. By comparison, no repugnancy arises where a State law is inconsistent with a Commonwealth law.