U4 4.1.3 - The significance of Section 109 of the Australian constitution

Question 1

What is Section 109, inconsistency of law in the Australian Constitution

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 does Section 109, inconsistency of law in the Australian Constitution mean?

Answer 2

When a state makes a law that conflicts with a commonwealth law, the Commonwealth law stays but the conflicting parts of the state law will not be valid

Question 3

What is the significance of Section 109?

Answer 3

resolves inconsistencies, restricts the law making powers of the states, requires a case to be brought forward in the courts for an inconsistent state law to be considered invalid, allows state laws previously deemed invalid to come into force if the commonwealth law is changed or removed

Question 4

explain: resolves inconsistencies

Answer 4

Section 109 provides a method to resolve inconsistencies between state and Commonwealth legislation. Once the law has been challenged before the courts, the Commonwealth law will prevail and the inconsistent section of the state law will be declared invalid.

Question 5

explain: restricts law making powers of the states

Answer 5

Section 109 restricts the law making powers of a state in regard to its concurrent powers. Whilst states retain the ability to pass laws on these matters their ability to maintain these laws can be limited

Question 6

explain: requires a case to be brought forward in the courts for an inconsistent state law to be considered invalid

Answer 6

a state law will only be declared invalid by the courts, according to s.109, when the validity of the law has been challenged (s.109 will not automatically deem an inconsistent state law invalid, it must be challenged)

Question 7

explain: allows state laws previously deemed invalid to come into force if the Commonwealth law is changed or removed

Answer 7

If part of a state law was previously deemed invalid and inconsistent with Commonwealth law and the conflicting Commonwealth law is changed or removed, the inconsistent part of the state legislation can come into effect again.