Lecture Notes: Section 109 of the Australian Constitution

Introduction

• Presenter: Renato Costa, channel "Aussie Law"
• Focus: Section 109 of the Australian Constitution
• Purpose: Address inconsistencies between state law and federal law

Understanding Section 109

• Text: "When a law of a state is inconsistent with the law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid."
• Basic Interpretation:
  • Federal law prevails over conflicting state law
  • State law is invalidated only to the extent of the inconsistency

Context and Background

• Section 109 vs. Government Interference:
  • Not about governmental immunity, unlike earlier discussed doctrines (Melbourne Corporation Doctrine, Engineers Case, SIGAMATIC)
• Relation to Sections 51 and 52:
  • Lists legislative powers of Commonwealth
  • Commonwealth cannot legislate outside these heads of power
• Relation to Sections 106, 107, and 108:
  • State powers continue subject to Commonwealth Constitution
• Clause 5 of the Australian Constitution Act:
  • Commonwealth laws are binding over state laws and courts

Key Elements of Section 109

1. Laws

• Definition:
  • Includes statutes, acts, regulations, and subordinate legislation
  • Excludes administrative orders, common law prerogatives, and conventions
  • Case references:
    • Lambshadden Lake (1958)
    • Airlines of New South Wales No. 1 (1964)
    • ANSET (1980)
    • Expat McLean (1930)
• Scope:
  • Must be enacted by Parliament or given force of law by statute

2. Inconsistency

• Types:
  • Direct Inconsistency:
    • Conflict of duties (e.g., contradictory state and federal laws on actions)
  • Covering the Same Field:
    • Legislative intent to cover the entire scope of a law
    • Case references:
      • Calvin case (1926)
      • Ex Pat Maclean
• Understanding:
  • Not just coexistence, but legislative intent to fully govern a matter

3. Invalidity

• Effect:
  • Means lack of operation, not the cessation of existence
  • Inoperative provisions can become operative again if federal law is repealed

Summary

• Section 109 addresses legal inconsistencies, not government conflicts
• Applicable Laws:
  • Statutes and legislations authorized by Parliament
• Inconsistency:
  • Mainly direct conflicts and covering the field
• Invalidity:
  • Laws become inoperative only to the extent of inconsistency

Conclusion

• Encouragement to watch further videos on specific High Court cases related to Section 109
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