section 109

Question 1

what is section 109

Answer 1

if there is a conflict between state and commonwealth laws, the commonwealth law will prevail to the extent of the inconsistency between the two pieces of legislation
there may be instances where commonwealth and state legislation is inconsistency and conflicting
section 109 is designed to help resolve conflicts and inconsistencies between state and commonwealth laws
state law provisions that are inconsistent with the commonwealth will therefore be invalid and unenforceable

Question 2

example of section 109

Answer 2

if the commonwealth states that you must do X and the state law states that you must not do X, then that section of the state law will become inoperable if challenged before a court
therefore, the inconsistent aspect of the state law will be invalid

Question 3

section 109 - inconsistency of laws

Answer 3

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 4

mcbain v state of victoria (2000)

Answer 4

The infertility treatment act was passed by the Victorian Parliament to establish the Vic Infertility Treatment Authority and the IVF program
Section 8 of the Infertility Treatment Act stated that, to receive treatment, a woman must be:
- Married and living with her husband on a genuine domestic basis, or
- Living with a man in a de facto relationship
However, section 22 of the Sex Discrimination Act made it unlawful for a person to refuse to provide a service to another person on the grounds of the latter person’s material status

Question 5

case - marital status under act definition

Answer 5

• The status or condition of being single, married, married but living separately and apart from one’s spouse, divorced, widowed or the de facto spouse of another person
  The provision of IVF is a service under the sex discrimination act
• Therefore, under this act it was unlawful to refuse to provide the IVF service on the grounds that the person was not married or living in a de facto relationship

Question 6

case - tested through the courts

Answer 6

• Dr John McBain, a specialist IVF doctor was directly affected by the inconsistency
• By denying patients access to IVF he was meeting the requirements of the Victorian legislation but contravening the - Commonwealth legislation
  To establish the inconsistency, he had to show that a patient was being denied access

Question 7

Leesa Meldrum

Answer 7

• she was a single woman
• the federal court upheld bcbain’s claim that the vic marital status requirement was inconsistent with the commonwealth provision and that on the basis of section 109 the commonwealth law should prevail
  the vic law was thus invalid to the extent of the inconsistency
  EFFECT - couples could not be denied IVF based on their marital status

Question 8

significance of section 109

Answer 8

It can act as a restriction on the states in implementing their legislative programs and mandates.
The state may therefore recognise that it will not be able to pass a law in a particular area where a Commonwealth law already exists

Section 109 does NOT automatically operate so that the states are denied power to pass inconsistent laws
the law needs to be challenged first before it is declared to be invalid
- if in the future, the commonwealth law is abrogated or changes, then the state law will be in force and have effect