Manufactured Inconsistency

Manufactured inconsistency under s 109 of the Constitution has had little attention devoted to it. This article undertakes a detailed consideration of manufactured inconsistency in two important respects. First, the principle of manufactured inconsistency is analysed in order to derive a defi nitional understanding of the term beyond the vague description that the Commonwealth may not ‘create’, ‘ fabricate’ or ‘manufacture’ an inconsistency. This article argues that the key to manufactured inconsistency lies in the concept of bad faith in legislating, whereby bad faith is evident where Commonwealth legislation is directed against the states’ capacity to legislate rather than enacted for any reason of policy. The concepts of good faith and bad faith in constitutional law are then analysed in order to identify indicia that might establish manufactured inconsistency. This leads to the conclusion that the actual intention of the Commonwealth is central to determining manufactured inconsistency, and principles of legislative intent and legislative motive are also considered. Second, this article considers whether there is any basis for implying such a doctrine into constitutional law under the requirements set out in Lange v Australian Broadcasting Corporation for drawing implications. While there is limited support for the implication, it is contended that manufactured inconsistency should not develop as a separate body of doctrine, but should instead fall within the Melbourne Corporation principle because manufacturing an inconsistency with state laws can properly be characterised as destroying the states’ capacity to govern.