section 109 of the australian constitution

Question 1

explain section 109

Answer 1

• Section 109 of the Australian Constitution helps resolve conflicts and inconsistencies between state and Commonwealth laws.
• Conflicts can arise when both the Commonwealth and state parliaments exercise concurrent powers in the same area.
• If a state law is inconsistent with a federal law, Section 109 resolves this conflict.
• Under Section 109, the Commonwealth law will prevail to the extent of the inconsistency.
• State law provisions that conflict with Commonwealth law are invalid and unenforceable.

Question 2

The Australian Constitution - 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

how would you explain section 109 in an example?

Answer 3

• For example, if Commonwealth law prohibits a specific conduct that state law allows, the state law will be inoperable where the laws are inconsistent.
• Similarly, if Commonwealth law requires you to do X while state law prohibits you from doing X, the state law will become inoperable if challenged in court.
• You cannot obey both laws simultaneously, so the inconsistent part of the state law is invalid.

Question 4

Example: Inconsistency in laws relating to marital status

Answer 4

• An area of concurrent law-making where there has been inconsistency between laws is marital status.
• The case of McBain v State of Victoria found that certain provisions of the former Infertility Treatment Act 1995 (Vic) were invalid because they were inconsistent with the Commonwealth’s Sex Discrimination Act 1984 (Cth).

Question 5

The significance of section 109

Answer 5

• Section 109 can restrict the states in implementing their legislative programs and mandates.
• It stipulates that if a state parliament passes a law in an area where there is already a Commonwealth law, the federal law will prevail to the extent of any inconsistency.
• This means a state parliament may recognize that it cannot pass a law in that area if a Commonwealth law already exists.

Question 6

example of where section 109 was applied

Answer 6

• Marriage is an area of concurrent power.
• The Commonwealth Parliament has legislation on marriage, specifically the Marriage Act 1961 (Cth), which sets the marriageable age at 18 years.
• People aged 16 and 17 can only marry in exceptional circumstances with court approval.
• State parliaments recognise that any state law contradicting this federal law will be invalid if challenged in court.

Question 7

outline the process when section 109 occurs

Answer 7

• Section 109 does not automatically prevent states from passing inconsistent laws or make them invalid immediately.
• The law must be challenged in court to determine if there is an inconsistency between the state and Commonwealth laws.
• This was demonstrated in the McBain case, where the court had to decide on the inconsistency.
• If a Commonwealth law is abrogated or changed in the future, and the state law remains, the state law will come back into effect.
• The state law will have no practical effect only as long as the Commonwealth law remains in force.

Question 8

what happens if the two laws are inconsistent?

Answer 8

• Even if two laws do not appear to be in conflict, a state law can be inconsistent with a Commonwealth law if the Commonwealth law is intended to “cover the field.”
• This means the Commonwealth law is intended to be a complete statement of law on a particular subject, leaving no room for state laws.
• In some cases, Commonwealth law might expressly allow state laws to continue, stating that it “does not affect any law of a state.”
• Determining if two laws are inconsistent or if a Commonwealth law covers the field is complex and often requires the High Court to intervene.