U4AOS1Topic 3: Significance of s.109 of the Constitution

Section 109 of the Constitution:

1. Deals with inconsistencies of laws between the state parliaments and the Commonwealth parliament.
2. 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 the inconsistency, be invalid.' Therefore, section 109 serves as a mechanism for resolving inconsistencies of laws between the state parliaments and the Commonwealth parliament in areas of concurrent law-making power (because concurrent law-making power means that both the states and the Commonwealth can legislate in the same area, which may result in differing laws that are inconsistent with one another).

Note:

1. Section 109 is not AUTOMATIC in its effects. That is, a claim must be brought to the High Court in order for a potentially inconsistent law to be declared as 'invalid'.
2. 'To the extent of the inconsistency' is very important because that is what gets invalidated. If a legislation passed by the state parliaments is ENTIRELY inconsistent with a legislation passed by the Commonwealth parliaments, then the ENTIRE legislation passed by the state parliament would get invalidated.

As the dot point specifically mentions the 'significance of section 109', it is required that you know why this section of the Australian Constitution is significant. Questions can get you to discuss the significance of section 109 as well. The scope of the type of questions which can get asked about this dot point is not very broad.

Significance of section 109:

1. Can act as a potential restriction on the states' ability to implement certain legislation when exercising their concurrent law-making powers. This is because of section 109 mandating that any inconsistent legislation between the states and Commonwealth will result in the former, to the extent of the inconsistency, being invalidated. Therefore, the courts may recognise that they are not able to pass law in a particular area due to there already being an existing legislation passed by the Commonwealth Parliament.
2. However, section 109 as a mechanism, is NOT automatic in its effects. That is, two conflicting legislations may exist at the same time until the conflicting legislation is challenged first before it is declared invalid. Therefore, the states are not automatically denied the power to pass an inconsistent law because it does not get declared invalid the moment it gets passed. Therefore, a case must be brought forward in the courts for an inconsistent state law to be considered invalid.
3. If there was an aspect of a state law that had been previously declared as invalid and inconsistent with a Commonwealth law, and the conflicting Commonwealth legislation is changed or removed so that there is no longer an inconsistency, then the part of the state legislation that was declared as 'inconsistent' can come into effect again.