Chapter 10.6

Question 1

Section 109

Answer 1

Section 109 of the Australian Constitution is designed to help resolve conflicts and inconsistencies
between state and Commonwealth laws. These inconsistencies sometimes arise when concurrent
powers are exercised by the Commonwealth Parliament and one or more state parliaments.

Under section 109 of the Australian Constitution, if there is a conflict between state and
Commonwealth laws, the Commonwealth law will prevail to the extent of the inconsistency between
the two pieces of legislation. State law provisions that are inconsistent with the Commonwealth law will
therefore be invalid and unenforceable.

Question 2

extract of the aus constituion: section 109 inconsistency of laws

Answer 2

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be invalid.

Question 3

the significance of section 109

Answer 3

• Section 109 can act as a restriction on the states in implementing their legislative programs and
  mandates.
• As you have learnt, it states that if a state parliament passes a law in an area where there is
  a Commonwealth law, the federal law will prevail over the state law to the extent of any inconsistency.
  That means that a state parliament may recognise that it is not able to pass a law in this particular area,
  if a Commonwealth law already exists.
• section 109 does not automatically operate so that the states are denied the power to pass
  an inconsistent law, or such that a law is automatically invalid when it is passed. The law
  needs to be challenged first before it is declared to be invalid
• Second, if at some time in the future the Commonwealth
  law is abrogated or changed, and the state law continues to be in existence,
  then the state law will be in force and have effect. That is, the state law will
  have no practical effect only for as long as the Commonwealth law remains
  in force.