Section 109 (VCE SSCE Legal Studies): Revision Notes
Section 109
What is section 109?
Section 109 of the Australian Constitution provides a crucial mechanism for resolving conflicts between state and Commonwealth laws. This provision becomes relevant when both levels of government exercise their concurrent powers in the same area of law-making, potentially creating inconsistencies that need resolution.
The Constitution contains this specific provision to address situations where state parliaments and the Commonwealth Parliament both legislate on the same matter. When such conflicts arise, section 109 establishes a clear hierarchy: Commonwealth law takes precedence.
The constitutional provision
Section 109 states:
"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."
This provision is examinable in VCE Legal Studies and understanding its exact wording is essential for assessment. You should be able to recall and apply this provision accurately in exam scenarios.
How section 109 operates
When an inconsistency exists between state and Commonwealth legislation, section 109 operates to invalidate the conflicting state law. The Commonwealth law will prevail to the extent of any inconsistency, rendering the state law provisions invalid and unenforceable.
Direct conflict between laws
An inconsistency typically arises in two main scenarios:
Prohibition vs permission: If Commonwealth law prohibits specific conduct that state law permits, the state law becomes inoperable where the inconsistency exists. The prohibition in Commonwealth law overrides the state permission.
Contradictory obligations: If Commonwealth law requires you to do X whilst state law prohibits you from doing X, that section of state law becomes inoperable when challenged. Since you cannot simultaneously obey both laws, the inconsistent portion of state law is invalid.
Key operational features
Section 109 does not operate automatically. Several important principles govern its application:
Challenge required: A state law is not automatically invalid when passed. It must first be challenged in court, where judicial determination establishes whether genuine inconsistency exists.
Temporary invalidity: If the Commonwealth law is later abrogated (repealed) or amended, and the state law remains on the statute books, the state law revives and regains legal effect. State laws are only inoperable whilst the conflicting Commonwealth law remains in force.
Express preservation: Sometimes Commonwealth legislation explicitly states that state laws continue to operate (typically through provisions stating the law "does not affect any law of a state"). In such cases, no inconsistency arises.
Case study: McBain v State of Victoria (2000)
This landmark case demonstrates how section 109 operates in practice, involving laws about access to IVF (in vitro fertilisation) treatment.
The legal conflict
Two pieces of legislation created an inconsistency regarding marital status requirements for IVF treatment:
Victorian legislation:
The Infertility Treatment Act 1995 (Vic) established the Victorian Infertility Treatment Authority and the IVF program. Section 8 restricted access to treatment, requiring women to be either:
- Married and living with their husband on a genuine domestic basis, or
- Living with a man in a de facto relationship
Access could be denied if these marital status requirements were not met.
Commonwealth legislation:
The Sex Discrimination Act 1984 (Cth) section 22 made it unlawful to refuse providing services based on a person's marital status. The Act defined marital status broadly as "the status or condition of being single, married, married but living separately and apart from one's spouse, divorced, widowed or the de facto spouse of another person."
Since IVF constitutes a "service" under the Sex Discrimination Act, refusing IVF on marital status grounds contravened Commonwealth law.
The parties and their predicament
Dr John McBain, a specialist IVF doctor, faced an impossible situation. By denying patients access based on marital status, he complied with Victorian law but simultaneously contravened Commonwealth law—a criminal offence under the Sex Discrimination Act.
Leesa Meldrum, a single woman wishing to conceive through IVF using donor sperm, was denied treatment under the Victorian law. Her case provided the specific example needed to establish inconsistency before the courts.
Worked Example: Applying Section 109
The Direct Conflict:
- Victorian law prohibited IVF access for unmarried women
- Commonwealth law prohibited discrimination based on marital status
- Dr McBain could not obey both laws simultaneously
Application of Section 109:
- Court identified the inconsistency between the two laws
- Section 109 required Commonwealth law to prevail
- Victorian law became invalid to the extent of the inconsistency
- The marital status restriction could no longer be enforced
The court's decision
The Federal Court upheld Dr McBain's argument, finding the Victorian marital status requirement inconsistent with Commonwealth provisions. Applying section 109, the court ruled that:
- Commonwealth law must prevail
- Victorian law was invalid to the extent of inconsistency
- Couples could not be denied IVF services based solely on marital status
- Unmarried patients gained legal access to services
The Victorian Parliament later repealed the Infertility Treatment Act and replaced it with the Assisted Reproductive Treatment Act 2008 (Vic), removing the discriminatory provisions.
The 'covering the field' doctrine
Beyond direct conflicts, section 109 operates through a broader doctrine developed by the High Court. A state law may be inconsistent with Commonwealth law even without apparent conflict if the Commonwealth law intends to 'cover the field'.
What 'covering the field' means
This doctrine applies when Commonwealth legislation is intended to be a complete statement of law on a particular subject matter. When the Commonwealth comprehensively legislates an area, no room remains for state laws, even if they do not directly contradict Commonwealth provisions.
The 'covering the field' doctrine means that even if a state law doesn't directly contradict Commonwealth law, it can still be invalid if the Commonwealth intended to regulate the entire area comprehensively. This extends section 109 beyond obvious conflicts.
Application considerations
Determining whether Commonwealth law covers the field requires careful analysis. The High Court examines:
- The scope and purpose of Commonwealth legislation
- Whether Parliament intended comprehensive regulation
- The subject matter's nature and Commonwealth objectives
This represents a complex area of law frequently requiring High Court intervention to determine whether genuine conflict exists.
Significance of section 109
Restriction on state legislative power
Section 109 acts as a significant restriction on state parliaments implementing their legislative programs. When Commonwealth law exists in an area of concurrent power, state parliaments must recognise potential limitations on their law-making capacity.
The marriage example
Marriage represents an area of concurrent power where this restriction operates clearly. The Marriage Act 1961 (Cth) establishes that:
- The marriageable age is 18 years
- People aged 16 and 17 can marry only in exceptional circumstances with court approval
State parliaments recognise that any contradictory law—for example, allowing 15-year-olds to marry—would be invalid if challenged under section 109. This demonstrates how section 109 operates as a practical constraint on state legislative power even before laws are challenged in court.
Practical implications for states
State parliaments must:
- Consider existing Commonwealth legislation before enacting laws in concurrent areas
- Assess whether their proposed laws might conflict with federal provisions
- Accept that any inconsistent provisions will be struck down if challenged
However, states retain law-making power in concurrent areas. They can legislate where:
- No Commonwealth law exists
- Their laws complement rather than contradict Commonwealth provisions
- Commonwealth law explicitly preserves state legislative capacity
Complexity in determining inconsistency
Deciding whether laws are genuinely inconsistent presents significant challenges. Courts must analyse:
- Whether direct conflict exists
- Whether Commonwealth law covers the field
- Parliament's intention in both pieces of legislation
- The practical effect of both laws operating simultaneously
This complexity often necessitates High Court intervention, making section 109 an important area of constitutional litigation. Many section 109 cases are not straightforward and require detailed judicial analysis to determine whether genuine inconsistency exists.
Exam technique: Analysing section 109 scenarios
Structured Approach to Section 109 Questions:
When answering questions about section 109, follow this analytical structure:
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Identify the laws: Clearly state which Commonwealth and state laws are potentially in conflict.
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Establish the inconsistency: Explain precisely how the laws conflict (direct contradiction, prohibition vs permission, or covering the field).
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Apply section 109: State that Commonwealth law will prevail to the extent of inconsistency.
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Determine the outcome: Explain which law operates and what happens to the inconsistent state provision.
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Consider broader implications: Discuss how this affects state legislative power and what happens if Commonwealth law changes.
Key Points to Remember:
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Section 109 provides that when state and Commonwealth laws are inconsistent, Commonwealth law prevails and the state law is invalid to the extent of the inconsistency
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Inconsistency can arise through direct conflict (prohibition vs permission, contradictory obligations) or through the 'covering the field' doctrine
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McBain v State of Victoria demonstrates section 109 in action: Victorian IVF restrictions based on marital status were inconsistent with Commonwealth anti-discrimination laws
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State laws are not automatically invalid—they must be challenged in court first
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State laws revive if the conflicting Commonwealth law is later repealed or amended
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Section 109 acts as a restriction on state legislative power in areas of concurrent power
Key Terms:
- Section 109: Constitutional provision resolving conflicts between state and Commonwealth laws
- Inconsistency: Conflict between state and Commonwealth legislation
- Prevail: Commonwealth law takes precedence in conflicts
- Invalid/inoperable: State law cannot be enforced where inconsistent with Commonwealth law
- Covering the field: Doctrine where Commonwealth law intends to comprehensively regulate an area
- Concurrent powers: Areas where both Commonwealth and state parliaments can legislate