Section 109

Question 1

What is section 109?

Answer 1

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 2

What is it designed to do?

Answer 2

To resolve inconsistencies between state and Commonwealth laws.

Question 3

What happens in section 109?

Answer 3

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

Question 4

The significance of Section 109:

Answer 4

• can act as a restriction on state parliaments in implementing legislative program & mandates
• State parliaments may recognise that in areas where a Commonwealth law already exists, they are not able to pass a law.
• However, section 109 does not automatically operate (states are not denied power to pass laws, and laws are not automatically invalid when passed).
  It can operate if:
• A potentially inconsistent law needs to be challenged in court, and the court will determine whether the laws are inconsistent.

Question 5

What would occur if in the future, the Commonwealth law is changed?

Answer 5

The state law would be in force and have effect.

Question 6

What case exemplifies the significance of section 109?

Answer 6

The McBain Case

Question 7

The McBain Case: Facts

Answer 7

Victorian Infertility Treatment Act 1995 (Vic):
You must be living with or married to a man to access IVF

Commonwealth Sex Discrimination Act(1984):
Unlawful to refuse service to someone on the basis of their marital status

Dr John McBain (a specialist IVF doctor) directly affected as denying patients access to IVF program based on marital status abiding by State law but not Commonwealth.

To establish inconsistency, McBain showed a single woman (Leesa Meldrum) wishing to conceive through IVF to the federal court.

Question 8

The McBain case: ruling

Answer 8

The federal court upheld McBain’s argument that Vic marital status requirement inconsistent with Commonwealth provision and under Section 109, Commonwealth law should prevail.

Therefore, Vic. law was invalid to the extent of inconsistency and couples could not be denied IVF services on basis of marital status and were allowed access to IVF services