DP3 Significance of s 109 Flashcards
What is the purpose of s 109?
To resolve inconsistencies between state and commonwealth laws?
What does s 109 state?
When state laws are inconsistent with Commonwealth law, Commonwealth law shall prevail, and state law is invalid to the extent of the inconsistency.
What is an example of the use of s 109?
In the McBain v Victoria 2006 case, the Sex Discrimination Act 1984 states that it was unlawful for a person who provides goods or and services to discriminate against another person due to their sex, marital or relationship status. However, the Infertility Treatment Act 1995 states that a woman bust be married and living with her husband to receive IVF treatment. Thus, someone who was in a de facto relationship or not married could not receive IVF, and a treatment facility could be seen as discriminating.
McBain took the case to the high court, and was found to be invalid.
What is the significance of s 109?
It acts as a restriction on the law-making abilities of state parliaments. Section 109 has the ability to alter the division of law-making powers in favour of the commonwealth, restricting or narrowing the powers of the states and broadening the law-making powers of the commonwealth.
Thus, states are less likely to create laws in concurrent areas where Commonwealth laws exist.
However, s 109 has little impact on states’ residual law-making powers.
