Sec. 109 of the Constitution

Question 1

What is the purpose of Sec. 109?

Answer 1

• Written to resolve inconsistencies between areas of lawmaking between the Commonwealth and the states

Question 2

What is the quote from Sec. 109?

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 can inconsistencies occur?

Answer 3

• When the Cth and States attempt to legislate in concurrent areas
• When Cth and States try to legislate in their own areas of lawmaking, but conflict still arises

Question 4

How does Sec. 109 work when an inconsistency occurs?

Answer 4

• The Commonwealth law will prevail
  
  • Timing does not matter
• To the extent of the inconsistency
  
  • Only the sections inconsistent with Cth law will be declared invalid
• States can still make laws on the topic
  
  • Only the areas declared invalid can’t have laws made around them

Question 5

McBain v. Victoria (2000) (NOT A HIGH COURT CASE)

Answer 5

• Arose due to an inconsistency between state and federal law regarding marital status and its effect on IVF treatment
• The legislation that was in conflict was the Infertility Treatment Act 1995 (Vic) and the Sex Discrimination Act 1984 (Cth)
• The Federal Court ruled that there was an inconsistency and that you could not discriminate on giving IVF treatment based off of marital status

Question 6

Impacts of Sec. 109 on Cth and State legislation

Answer 6

• Only comes into effect when an inconsistency is challenged in the appropriate court, and therefore, if unchallenged, inconsistencies can remain
• Can act as a restriction, as if the Cth has already passed legislation in a concurrent area, then states may be unable to pass laws in this area that comes into conflict
• If Cth law is changed or abolished so that the inconsistent area is gone, then the area of State law that was invalid can come into effect again
• States are also generally free to legislate in residual areas of lawmaking since the Cth is usually unable to interfere
• On rare occasions, the residual area can be limited if a challenge is brought