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Section 109 of the Australian Constitution

Learn Section 109, detailing how inconsistencies between Commonwealth and State laws are resolved, including tests for validity, types of inconsistencies (direct, indirect, operational), legal principles, landmark cases, and exceptions.

Mason Bennett
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|ET.EMF.NT1: RELEVANTPROVISION.UNDER s 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shallprevail, and the former shall, to the extent of the inconsistency, be invalid.L _______________□ELEMENT2: ARETHE LAWS VALID?______________________________For s109 to be invoked, there must be a valid Commonwealth law and a valid State law.IS THE C O M M O N W E A L T H LAW S U P P O R T E D BY A HEAD OF P O W E R ?If it states that it is supporte d by a head of power.Go through characterisation and the relevant test of characterisation.s 51(i) trade and commerce:Does the law concern international or interstate trade and commerce? If intrastate, isit incidental to it?ES 5 l(xx) Corporations power: is it related to a foreign corporation (incorporation case) or a trading or financialcorporation (apply the activities test: Adamson's Case).oDoes the law single out the constitutional corporation as the object of statutory command? Work ChoicesCase.S 51(ii) Taxation power : is it a tax that is being exacted?S 51(xxix) external affairs:odoes the law relate to matters affecting Australia's relations with other countries? Thomas v Mowbray.oDoes the law apply to a place, person, matter or thing geographically externalto Australia? Seas andSubmerged Lands CaseoDoes the law implement an international legal obligation?IS THE STATE LAW VALID?The legislative power of the States is 'plenary and ample':Union Steamship Co of Australia v King(1988) 166 CLR 1.oWhere a State Law relates to an exclusive Commonwealth power (eg s.90 excise duties), it is invalid, sothere is no need to rely on s.109.Conclude if the laws are valid.ELEMENT3:WHATKIND OF LAWS?SUB-ISSUE: WHAT KIND OF LAWS ARE REFERRED TO UNDER S 109?CState: the laws enacted by the state and federal parliament here, are [statutes] [statutory rales orregulations] [industrial awards] which are included under si 09.Is it a statutes/ legislation: Engineers' Case(1920) 28 CLR 129;Estatutory rules andregulations : O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565;Eindustrial awards: eg, Ex parte Mclean (1930) 43 CLR 472;oCF: Does not include administrative ordersor directionsor Common law .ELEMENT4: ARETHELAWS INCONSISTENT ?STATE: There are two approachesto determine whether an inconsistency may arise between Stateand Commonwealth laws: Work Health Authority v Outback Ballooning ('Outback Ballooning') (2019)266 CLR 428, 446-7 (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).

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Civil Law

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