Recently I've been receiving a lot of your questions about certain provisions of the Constitution and I want to address all of them. That's why I've been organizing and changing the schedule and gathering the material to prepare different videos about each one of the topics that you've been suggesting. And this video in fact is a response to one of your comments and the comment was about section 109 of the Australian Constitution.
And since I am a man of the people, the moment I saw that comment, I decided to gather my books, I started studying them and preparing for this video. And in this video, I do hope to answer the questions that you may have about section 109 of the Australian Constitution. Hello everyone, my name is Renato Costa. This is Aussie Law, the biggest channel about Australian law made by a Brazilian who lives in Australia. Today, we are going to look at section 109 of the Australian Constitution.
That section will tell us what happens when there is an inconsistency between a state law and a federal law. Let's start by opening the Constitution and reading section 109. It says, 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. This seems like a pretty straightforward provision, doesn't it? Because it basically says that there is a state law and if there is an inconsistency between that state law and the federal law, the federal law will prevail and the state law will be considered invalid to the extent of that inconsistency. So...
done fine check the box that's it over but in practice to assess if a law is really inconsistent or not it's not as easy as just the text of the Constitution entails so let's break this session down into different parts and try to understand the elements that are there in section 109 let me just remind you that we've already seen what happens if there is a Commonwealth law that somehow affects a state government. We talked about it in the video that I made about the Melbourne Corporation Doctrine. We have also talked about what happens when a state law interferes with the Commonwealth government.
And we discussed that not only in the video about the engineers case, but also in the video that I did later on called SIGAMATIC. All of those cases are about laws either from the Commonwealth or from the state. that interfere with the Commonwealth or the state's governments.
So, they are about immunities. But here, in section 109, we are not talking about laws that interfere with governments. We are talking about conflicting laws, not about immunities, but about inconsistency of laws. Another thing that we should keep in mind when reading section 109 relates to sections 51 and 52, of the Australian Constitution, because these two sections, they will give us the list with the heads of powers, the legislative powers of the Commonwealth, not only the concurrent powers, but also the exclusive powers of the Federal Parliament.
And this is important because there will be no inconsistency if the Commonwealth legislates about something that falls outside of the scope of those provisions. If that was the case... We should be talking about the invalidity of the law because the Commonwealth cannot legislate about matters that are not listed there in the Constitution. So the inconsistency of section 109 demands of the Commonwealth a valid law. It's not possible to have an inconsistency of laws with an invalid law.
So inconsistency happens when the law of the Commonwealth has a proper head of power. especially under section 51 of the Australian Constitution, because that section gives us the list of concurrent powers that both the States and the Commonwealth can legislate about. So, if the law is invalid, there will be no inconsistency. We should also keep in mind the provisions in sections 106, 107 and 108, because all of them refer to the continuing powers of States'parliaments and the States'constitutions.
Section 106 provides that the constitution of each state is to continue subject to the constitution of the Commonwealth. Section 107 provides that the powers of each state State Parliament is to continue subject to the Commonwealth Constitution. And Section 108 provides that each law enforced in a colony is to continue subject to the Constitution of the Commonwealth.
So basically what we see here is that the whole legal apparatus of the States are to continue subject to the Constitution of the Commonwealth. Furthermore, look at clause 5 of the Australian Constitution Act. All laws made by the Parliament of the Commonwealth shall be binding on the courts, judges and the people of every state and of every part of the Commonwealth, notwithstanding anything in the laws of any state. And it continues.
But what it says here is that with the creation of the Federation, with the creation of the Commonwealth, the states will lose certain powers. They had planetary powers before, but now they're... giving up some of those powers and giving them to the Commonwealth.
That is part of the new federal arrangement. In matters authorized by the Constitution, the federal Parliament will trump states, parliaments and laws. So this is the background to understanding the context and the content of section 109 of the Australian Constitution. So let's talk about the three elements that compose section 109. The first one is the term laws. It's really important to understand what is included in the term laws in section 109. And just remember, if a law is invalid, it's not considered law in terms of section 109. Law, in the sense of this section, will be the statutes, the acts of parliament, but also regulations and subordinate legislations authorized by the federal parliament.
According to the High Court, in a case called Lambshadden Lake of 1958, Even a federal law that is made for a territory will fall within the scope of the term laws in section 109 of the Australian Constitution. However, the term law does not include administrative orders and directions, as per decided by Justice Taylor in Airlines of New South Wales and New South Wales No. 1 of 1964. The High Court has also decided that the term does not include common law prerogatives and conventions. You can read about that in a case called ANSET of 1980. The term does not include industrial arbitration awards either, except if the industrial awards are given force of law by statute. You can check the case of Expat McLean from 1930 that talk about the character of the industrial award in receiving and being considered as a federal law. in terms of the application of section 109. As you already know, I always leave the link to all of the cases that are mentioned in the description of this video.
So basically, what falls within the scope of law in terms of section 109 are statutes that are enacted by Parliament or legislation that receives the force of law by statutes and by parliamentary authority. Now let's talk about the second element, inconsistency. Constitutional scholarship and case law has taught us that there are many types of inconsistency, but I want to highlight two of them, the main ones.
The first is a direct inconsistency. The second happens when laws cover the same field. Let's have an overview of these two types of inconsistency, starting with the direct inconsistency. Direct inconsistency, for example, can happen through a conflict of duties.
That is, when two laws require of me opposing things. For example, let's say that there's a state law that tells me that I cannot wear a white shirt when I'm going voting. And let's say that there is a commonwealth law that tells me that on the day of an election I can only wear a white shirt. Of course, these two laws, the state law and the commonwealth law, are conflicting. I cannot do both.
It's impossible. So this is an example of a direct inconsistency. Let me give you another example.
This one is kind of different from the conflict of duties because in this one one of the law gives me the right to do something and the other one gives me a duty not to do something. So let's say that there's a state law that prohibits me from flying a drone over a lake but there is also a federal law that gives me the right to fly a drone over any body of water. So I can choose not to fly the drone over the lake and I wouldn't have any problems with that because I'm not doing anything that's wrong.
under state law and I'm not exercising the right that I have under Commonwealth law. But one tells me that I cannot do something and the other one tells me that I have the right to do it. So what happens if I decide to fly the drone over a lake? Yep, that's where the inconsistency will happen and that's where section 109 of the Australian Constitution will operate. Now the other type of inconsistency is usually called covering the same field.
The High Court has created a test to identify the intention of the legislator in covering the whole field of the law or not. According to Justice Isaacs in the Calvin case of 1926, if a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field. So, as put by Justice Dixon in Ex Pat Maclean about the covering the field test, the inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment completely, exhaustively or exclusively What shall be the law governing the particular conduct or matter to which its attention is directed? So, inconsistency can be either directly or when the law is intended to cover the whole field.
I think these types of inconsistency will become clearer when we look at some cases decided by the High Court of Australia regarding section 109 of the Australian Constitution. If you want to understand more about that, To see the cases that have been decided by the High Court and see how section 109 really happens and is analyzed in practice, make sure to subscribe to our channel and click the bell icon because that way you'll be enabling the notifications and you will know when I upload my next video. Also since you are at it just leave a like in this video right now. Do it.
Good. Thanks. And finally the third element is the element of Invalidity in this context means lack of operation. It does not mean that the law will cease to exist.
The state law is not destroyed. It will continue. But that specific part, that part, that provision that is inconsistent with the Commonwealth law, that part will become inoperative.
And if by any chance one day the federal law ceases to exist, is repealed somehow, then that part of the state law that was inoperative will become operative again, from invalidity to validity. Now let me summarize what we learned so far about section 109 of the Australian Constitution. That section refers to an inconsistency of the laws of the state and of the federal commonwealth. It's not about the immunities and it's not about conflicts between the government and a law of another sphere. The term laws relates to statutes, regulations and subordinate legislation that is authorized by the federal parliament.
Industrial relations awards can be considered law as well, provided that they are enacted under an act of Parliament and that act of Parliament gives them the force of law. The inconsistency of law can happen in many different ways, but the two primary ones are the direct inconsistency when there is for example a conflict of duties or when the law was intended to cover the whole field of the matter that the law refers to. Finally, we saw that the invalidity will mean not that the law will be destroyed, but that it will become inoperative, just to that extent where there is an inconsistency with the federal law. This was the first part of my response to your requests to discuss section 109 of the Australian Constitution.
If you liked this video, don't forget to click the like button, subscribe to our channel and hit the bell sign. And don't forget that I'll come back with another video very soon that discusses the cases related to Section 109 of the Australian Constitution. You don't want to miss that because that will complement and supplement this video right here. I hope to see you there. Until then, ciao!