Section 109 is of for the ordinary citizen, who is entitled to know which of two ‘great importance inconsistent laws he is required to observe’. Deane J Australia is fundamentally a of The Constitution is concerned with the ‘union people;’. ‘ultimately governance and protection of the people from whom the artificial entities called the Commonwealth and States derive their authority’. s 109 serves the of protecting the individual from the injustice of being ‘important function subjected to the requirements of ... inconsistent laws of Commonwelath and State Parliaments on the same subject’. The Commonwealth cannot retrospectively avoid the operation of s 109. Minority: Mason J s 109 operates on inconsistency. factual The Cth cannot enable a State law to operate when there an inconsistency. in fact is However, inconsistency in fact and their effect only exists by virtue of federal laws, depends on the terms and intention of those laws. Thus, federal laws can the of inconsistency (by expressing an not to remove fact intention cover the field). What Parliament can do prospectively, it can do retrospectively. Parliament can therefore retrospectively remove the inconsistency upon which s 109 operates, by expressing an intention not to have covered the field. s 109 is not a source of individual rights. Individual rights arise only where they are affected by the operation of s 109 in rendering a State law invalid. s 109 does not protect citizens from retrospective legislation. A fourth test? Does the state law or the of a federal law? ‘alter, impair detract from’ practical ‘operation’ (Kakariki (1937) Commonwealth v Victoria case) (1986) Australian Mutual Provident Society v Goulden (1999) Telstra Corporation Ltd v Worthing (2005) APLA Ltd v Legal Services Commissioner (NSW) [2010] Dickson v The Queen
Section 109 is of ‘great importance for the ordinary citizen, who is entitled to know which of two inconsistent laws he is required to observe’. Deane J Australia is fundamentally a ‘union of people;’. The Constitution is ‘ultimately concerned with the governance and protection of the people from whom the artificial entities called the Commonwealth and States derive their authority’. s 109 serves the ‘important function of protecting the individual from the injustice of being subjected to the requirements of ... inconsistent laws of Commonwelath and State Parliaments on the same subject’. The Commonwealth cannot retrospectively avoid the operation of s 109. Minority: Mason J s 109 operates on factual inconsistency. The Cth cannot enable a State law to operate when in fact there is an inconsistency. However, inconsistency in fact only exists by virtue of federal laws, and their effect depends on the terms and intention of those laws. Thus, federal laws can remove the fact of inconsistency (by expressing an intention not to cover the field). What Parliament can do prospectively, it can do retrospectively. Parliament can therefore retrospectively remove the inconsistency upon which s 109 operates, by expressing an intention not to have covered the field. s 109 is not a source of individual rights. Individual rights arise only where they are affected by the operation of s 109 in rendering a State law invalid. s 109 does not protect citizens from retrospective legislation. A fourth test? Does the state law ‘alter, impair or detract from’ the practical ‘operation’ of a federal law? Commonwealth v Victoria (Kakariki case) (1937) Australian Mutual Provident Society v Goulden (1986) Telstra Corporation Ltd v Worthing (1999) APLA Ltd v Legal Services Commissioner (NSW) (2005) Dickson v The Queen [2010]