Section 109 of the Australian Constitution
Encyclopedia
In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia
provides that the laws of the Commonwealth shall prevail over those of a State to the extent of any inconsistency.
The meaning of "invalid" in s 109 does not mean that a State law is invalid in the postitivist sense that the State Parliament lacks power to pass it. The State law, though enacted with full validity, merely ceases to operate. Hence, in order for s 109 to come into operation at all, there must be a valid State law and a valid Commonwealth law. (Carter v Egg and Egg Pulp Marketing Board (Vic)).
When s 109 takes effect, the State law yields to the Commonwealth law, but remains a valid law of the Parliament which enacted it. The practical significance of this will become apparent if, at some later date, the overriding Commonwealth law ceases to operate.
In the absence of s 109, this function might have been fulfilled by covering clause 5 of the Constitution, which makes Commonwealth laws "binding on the courts, judges and people ... of every part of the Commonwealth".
The evolution of High Court doctrine in s 109 cases has led to three broad approaches to determine when there is inconsistency.
. A state referendum on liquor trading hours was fixed by State law for the same day as a federal Senate election. The Commonwealth law provided that a State referendum could not be held on that day.
Chief Justice Knox
and Justice Gavan Duffy
agreed in Clyde Engineering Co Ltd v Cowburn
that a simple test of logical contradiction was "not sufficient or even appropriate in every case", and enunciated this test.
This approach may involve answering one or more of the following questions:
Questions 1 and 2 can be problematic as they frequently depend on a subjective assessment of the scope and operation of a Commonwealth law. In the absence of express intention, the Court will look to a variety of factors, such as the subject-matter of the law and whether for the law to achieve its purpose it is necessary that it be a complete statement of the law on that topic.
This test involves a more indirect form of inconsistency and makes s 109 a much more powerful instrument for ensuring the supremacy of Commonwealth law.
It had first been suggested in Australian Boot Trade Employees Federation v Whybrow (1910). Justice Dixon
had foreshadowed a similar test in Commonwealth v Queensland (1920). This test received its first clear formulation in Clyde Engineering Co Ltd v Cowburn by Justice Isaacs
. In that case, by covering the field, Isaacs was able to ensure the supremacy of the Commonwealth system.
The "cover the field" test became fully authoritative when Justice Dixon adopted it in Ex parte McLean (1930).
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
provides that the laws of the Commonwealth shall prevail over those of a State to the extent of any inconsistency.
The meaning of "invalid" in s 109 does not mean that a State law is invalid in the postitivist sense that the State Parliament lacks power to pass it. The State law, though enacted with full validity, merely ceases to operate. Hence, in order for s 109 to come into operation at all, there must be a valid State law and a valid Commonwealth law. (Carter v Egg and Egg Pulp Marketing Board (Vic)).
When s 109 takes effect, the State law yields to the Commonwealth law, but remains a valid law of the Parliament which enacted it. The practical significance of this will become apparent if, at some later date, the overriding Commonwealth law ceases to operate.
In the absence of s 109, this function might have been fulfilled by covering clause 5 of the Constitution, which makes Commonwealth laws "binding on the courts, judges and people ... of every part of the Commonwealth".
The evolution of High Court doctrine in s 109 cases has led to three broad approaches to determine when there is inconsistency.
Full text
Direct inconsistency
The first two tests, and in particular the first, are said to involve "direct" inconsistency.Impossible to obey both laws
Instances may arise when it is impossible to obey two laws simultaneously. A classical example is R v Licensing Court of Brisbane; Ex parte DaniellR v Licensing Court of Brisbane; Ex parte Daniell
R v Licensing Court of Brisbane; Ex parte Daniell 28 CLR 23 is a High Court of Australia case about inconsistency between Commonwealth and State legislation, which is dealt with by s 109 of the Australian Constitution...
. A state referendum on liquor trading hours was fixed by State law for the same day as a federal Senate election. The Commonwealth law provided that a State referendum could not be held on that day.
One law confers a right which the other purports to take away
In some situations, one law may purport to confer a legal right, privilege or entitlement, while another law purports to take away or diminish some right or entitlement. In other words, one law says that you can do X, the other that you cannot do X. For example, the Commonwealth provision in Colvin v Bradley Brothers Pty Ltd affirmed that employers in certain industries could employ women to work on certain machines whilst the State provision made it an offence to do so. It was not impossible to obey both laws, since nothing in the Commonwealth law required the employment of females. This type of inconsistency may require a working-out of the actual effect of both laws in an individual case. Because of this, it could require a more subtle analysis than test 1.Chief Justice Knox
Adrian Knox
Sir Adrian Knox KCMG, KC , Australian judge, was the second Chief Justice of the High Court of Australia, sitting on the bench of the High Court from 1919 to 1930.-Education:...
and Justice Gavan Duffy
Frank Gavan Duffy
Sir Frank Gavan Duffy, KCMG, PC, QC , Australian judge, was the fourth Chief Justice of the High Court of Australia, sitting on the bench of the High Court from 1913 to 1935.-Early life:...
agreed in Clyde Engineering Co Ltd v Cowburn
Clyde Engineering Co Ltd v Cowburn
Clyde Engineering Co Ltd v Cowburn 37 CLR 466 is a High Court of Australia case about inconsistency between a Commonwealth and a State law, which is dealt with in s 109 of the Australian Constitution...
that a simple test of logical contradiction was "not sufficient or even appropriate in every case", and enunciated this test.
Covering the field (indirect inconsistency)
It may happen that the Commonwealth law evinces a legislative intention to "cover the field". In such a case there need not be any direct contradiction between the two enactments. What is imputed to the Commonwealth Parliament is a legislative intention that its law shall be all the law there is on that topic. In that event, what is "inconsistent" with the Commonwealth law is the existence of any State law at all on that topic.This approach may involve answering one or more of the following questions:
- What field is covered by the Commonwealth law?
- Is the Commonwealth law intended to be exclusive within its field?
- Does the State law operate in the same field as the Commonwealth law?
Questions 1 and 2 can be problematic as they frequently depend on a subjective assessment of the scope and operation of a Commonwealth law. In the absence of express intention, the Court will look to a variety of factors, such as the subject-matter of the law and whether for the law to achieve its purpose it is necessary that it be a complete statement of the law on that topic.
This test involves a more indirect form of inconsistency and makes s 109 a much more powerful instrument for ensuring the supremacy of Commonwealth law.
It had first been suggested in Australian Boot Trade Employees Federation v Whybrow (1910). Justice Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
had foreshadowed a similar test in Commonwealth v Queensland (1920). This test received its first clear formulation in Clyde Engineering Co Ltd v Cowburn by Justice Isaacs
Isaac Isaacs
Sir Isaac Alfred Isaacs GCB GCMG KC was an Australian judge and politician, was the third Chief Justice of Australia, ninth Governor-General of Australia and the first born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of Australia and...
. In that case, by covering the field, Isaacs was able to ensure the supremacy of the Commonwealth system.
The "cover the field" test became fully authoritative when Justice Dixon adopted it in Ex parte McLean (1930).
Clearing the field
The Commonwealth can avoid covering a legislative "field" by passing an express provision declaring its intention not to do so. This means in practice that the Commonwealth can control the operation of s 109 in a negative way by making it clear that related State laws are to operate concurrently with the Commonwealth law. The leading case is R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977).Operation of the three tests
In practice, the three tests overlap. For example, in Commercial Radio Coffs Harbour v Fuller (1986), the finding that there was no inconsistency depended on all three tests. Conversely, the conclusion that there is an inconsistency may depend on more than one test, as was evident in the divergent reasoning employed in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980).See also
- Supremacy ClauseSupremacy ClauseArticle VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
--analogous provision in the United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...