Section 109 of the Australian Constitution

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Section 109 of the Australian Constitution - Page 1 preview image

|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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Section 109 of the Australian Constitution - Page 2 preview image

1.Does the State law alter, impair or detract from the operation of a Commonwealth law, giving rise to a directinconsistency? Victoria v Commonwealth ('The Kakariki') (1937) 58 CLR 618, 630 (Dixon J).2.Does the Commonwealth law express an intention to 'completely, exhaustively, or exclusively,what shall be thelaw governing the particular conduct or matter to which its attention is directed'? Ex parte McLean (1930) 43 CLR472, 483.IS IT DIRECT INCONSISTENCY: CONFLICT OF DUTIES□Is it impossible to simultaneously obey both laws: Exparte Daniell; Australian Mutual Provident Society vGoulden. Draw analogies or distinguish with these cases.a.govt activities: where it was held that one can't attend a state referendum at the same time as a federal senateelection: R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 33R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 33The Liquor Act 1912 (Qld) required a referendum on liquor trading hours to be held on the same day as the federalSenate election. However, the Commonwealth Electoral Act provided that a State referendum could not be held on thesame day as a federal Senate election. Held: State law was inconsistent with the Commonwealth law under s 109 andthe Commonwealth law prevailed as there was a clear onflict where one could not obey both laws simultaneously.b.Insurance schemes : Australian Mutual Provident Society v GouldenAustralian Mutual Provident Society v Goulden(1986) 160 CLR 330.In this case, the plaintiff was a visually impaired person who took an insurance out and sought to vary the policy byadding a waiver of premium benefit in the event of his disablement for the period that he is disabled.Issue: a direct inconsistency arose between the NSW Anti-Discrimination Actand the Commonwealth Life InsuranceAct The inconsistency arose because the Commonwealth law required that premium rates for insurance policies beapproved by an actuary, taking into account various risk factors, including physical impairments. The NSW Anti-Discrimination Act, on the other hand, prohibited denying goods or services based on disablement, which effectivelyprevented insurers from considering physical impairments when setting premiums.The court determined that the state law's prohibition interfered with the essential function of life insurance businesses toclassify risks and set premiums appropriately. As a result, the Commonwealth law, which is supreme in cases ofinconsistency, rendered the NSW law inapplicable to the extent of the conflict. This decision underscored the principlethat Commonwealth legislation takes precedence over state laws when there is a direct inconsistency,TYPE OF DIRECT INCONSISTENCY: CONFLICT OF RIGHTS□Is there an inconsistent rights or duties.Ask yourself: is it possible to obey both the laws even if they areinconsistent?I I The State law alters, impairs or detractsfrom the Commonwealth law, because:oby granting a right, the Commonwealth law intends that the right should be capable of beingexercised: Colvin v Bradley Brothers where the state law was held to be inconsistent because it said womenwere not allowed to work in mills while Cwth law permitted women to work in mills. Was possible to obeyboth laws but held inconsistent as rights were taken away by NSW.ocriminal conduct that Commonwealth law intends should not be criminal:Dickson v The Queen (2010)241 CLR 491 where there was a drect inconsistency as the state law imposed greater obligations on theappellant than those provided by the federal law.

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Section 109 of the Australian Constitution - Page 3 preview image

□Cf with Ansett where Grant of a mere right or permission by a Commonwealth law will notnecessarily render relevant state laws inoperative:Ansett Transport; Commercial radioDickson v The Queen (2010) 241 CLR 491Here, there was a Federal offence of conspiracy to steal Commonwealth property that was intended to operate in narrowcircumstances. State law had a much broaderconspiracy to steal property offence and therefore criminalized conduct thatthe Commonwealth law intended should not be unlawful. Held: there was a direct inconsistency,in that the State lawaltered, impaired and detracted from the operation of the Commonwealth law. In considering it as a direct inconsistency,was the fact that the state law, if allowed to operate, would impose upon the appellant obligations greater than thoseprovided by the federal law'.Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151.NSW law prohibitedthe employment of women to work on milling machines. Commonwealth industrial award permittedemployment of women to work on milling machines. It was possible to obey both laws, since nothing in theCommonwealth law required the employment of women. However, it was held to be a direct inconsistency because theNSW law was directly inconsistent with the federal law. Held: the State law was inconsistent with the operation of theCommonwealth law and section 109 was applied to override the state law.CF with the cases below to see if the cth law is subject to applicable state laws.EXCEPTIONS: WHEN THERE IS NO DIRECT INCONSISTENCY:a.Grant of a mere right or permission by a Commonwealth law will not necessarily render relevant statelaws inoperative: Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237Ansett employees were governed by a Commonwealth awardfor airline pilots. Ansett refused to employ Wardley due toher sex which was in violation of the Equal Opportunity Act Ansett argued that the state laws were invalid as Cth lawallowed it to dismiss someone within six months after giving notice. Held: the Commonwealth award did not exemptAnsett from complying with the Equal Opportunity Act 1977 (Vic). The Commonwealth law that conferred a right totermination did not evince an intention to operate to the exclusion of any state anti-discrimination laws. Further, theyoperated to legislate different subject matters.b.Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47.Commercial Radio Coffs HarbourCourt found that there was no inconsistency with the state law. A Commonwealth licence for a new commercial radiostation had been given under the Broadcasting and Television Act 1942 (Cth). A condition of the licence required theerection of two antennae each 170 metres high. Court held that the antenna could be constructed without breachingstate planning laws. Court held that the penalties imposed for non-compliance with the licence conditions did notrequire licensees to disobey state law of environmental planning. Licence didn't give a positive right to disobey statelaws.CONCLUSION: determine if there is a direct inconsistency. There can be direct and indirect inconsistencyat times as well.

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