Inconsistency s109 – What is s109? Definition When a law of the Commonwealth and the States conflicts, the – Commonwealth law takes precedence. S109 States a law of a State is inconsistent with a law of the ‘When Commonwealth, the latter shall prevail and the former shall, to the extent of inconsistency, be invalid’ How to interpret s109? What is a law for the purposes of s109? A law refers to Acts of Parliament, Statute and Regulations. It does not include unless they are expressly industrial awards or agreements provided for within Commonwealth Statute (i.e. Industrial Relations Act 1988 (Cth)) (193) 43 CLR 472 Ex Parte McLean Are valid laws in operation in both Jurisdictions? If either the Commonwealth or the State law is found to Vires – be operating in excess of its powers there is no need for ultra vires – – a test of inconsistency as one is invalid. Carter v Egg and Egg Pulp Marketing Board (Vic) 1943 66 CLR 557 Has Commonwealth Statute Expressly Provided for Precedence? If Commonwealth Statute has expressly provided for precedence of Commonwealth Statute through the inclusion of a clause such as award or workplace agreement until this Act prevails over ‘an any law of a State or Territory ... to the extent of any inconsistency’ Then the law is invalid (i.e. go back to Above) b. Per (1948) 77 CLR 84 Wenn v Attorney-General (Vic) Per (1995) Western Australia v Commonwealth (Native Title) 183 CLR 373 What is the effect of s109? S109 invalidates State laws only to the extent, and only for the period, that an inconsistency remains per Commonwealth v Western – (1999) 196 CLR 392. Australia the State act becomes If consistency is permanent – per 77 CLR 84 Wenn v Attorney-General (Vic) ‘inoperable’ If not permanent, or an Commonwealth Act is ‘Restoration’ – repealed, then the conflicting State legislation will be ‘restored’ per Western Australia v Commonwealth (Native Title).
Inconsistency – s109 What is s109? Definition – When a law of the Commonwealth and the States conflicts, the Commonwealth law takes precedence. S109 States ‘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 inconsistency, be invalid’ How to interpret s109? What is a law for the purposes of s109? A law refers to Acts of Parliament, Statute and Regulations. It does not include industrial awards or agreements unless they are expressly provided for within Commonwealth Statute (i.e. Industrial Relations Act 1988 (Cth)) Ex Parte McLean (193) 43 CLR 472 Are valid laws in operation in both Jurisdictions? Vires – If either the Commonwealth or the State law is found to be operating in excess of its powers – ultra vires – there is no need for a test of inconsistency as one is invalid. Carter v Egg and Egg Pulp Marketing Board (Vic) 1943 66 CLR 557 Has Commonwealth Statute Expressly Provided for Precedence? If Commonwealth Statute has expressly provided for precedence of Commonwealth Statute through the inclusion of a clause such as ‘an award or workplace agreement until this Act prevails over any law of a State or Territory ... to the extent of any inconsistency’ Then the law is invalid (i.e. go back to b. Above) Per Wenn v Attorney-General (Vic) (1948) 77 CLR 84 Per Western Australia v Commonwealth (Native Title) (1995) 183 CLR 373 What is the effect of s109? S109 invalidates State laws only to the extent, and only for the period, that an inconsistency remains – per Commonwealth v Western Australia (1999) 196 CLR 392. If consistency is permanent – the State act becomes ‘inoperable’ per Wenn v Attorney-General (Vic) 77 CLR 84 ‘Restoration’ – If not permanent, or an Commonwealth Act is repealed, then the conflicting State legislation will be ‘restored’ per Western Australia v Commonwealth (Native Title).
Constitutional_Notes.docx