Manufacturing and Avoiding Constitution Section 109 Inconsistency: Law and Practice
| Author | Gary A Rumble |
| DOI | 10.22145/flr.38.3.8 |
| Published date | 01 September 2010 |
| Date | 01 September 2010 |
| Subject Matter | Article |
MANUFACTURING AND AVOIDING CONSTITUTION
SECTION 109 INCONSISTENCY: LAW AND PRACTICE
Gary A Rumble*
INTRODUCTION
The rule of law is fundamental to our society. Certainty about what the law is, is
important to the rule of law.
Those whose activities may be affected both by Commonwealth laws a nd by State
laws need certainty about whether the Commonwealth law overrides, or is s ubject to,
State law. Those who administer Commonwealth law or State law need certainty about
the relationship between the two. To participate in law-making on an informed basis,
law-makers need certainty about what will be the legal effect of legislation which they
enact.
From every point of view, it is desirable that there be certainty about the extent to
which Commonwealth law overrides or is subject to State law.
Section 109 of the Constitution provides:
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.
There has been some uncertainty about the effect of s 109. In particular there has
been uncertainty about whether a Commonwealth law which creates a capacity/
power/right/obligation can validly control wh ether there is inconsistency of that law
with State law by stating expressly whether the Com monwealth capacity/power/
right/obligation created operates regardless of, or subject to, some or all State law.
Thirty years ago I published a n article in the Federal Law Review in which I
addressed these issues.1 The substance of my argument was:
While t he terms 'direct' and 'cover the field' inconsistency are convenient for
describing h ow i nconsistency may arise, the Constitution does not make any
distinction between those two kinds of inconsistency.
Inconsistency — whether described a s 'direct' or 'cover the field' — cannot
arise regardless of the intention of the Commonwealth law.
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* Partner DLA Phillips Fox. My thanks to David Fintan and Jennifer Loutit who assisted in
research to support this article.
1 'The Nature of Inconsistency under Section 109 of the Constitution' (1980) 11 Federal Law
Review 40.
446 Federal Law Review Volume 38
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Whether a capacity/power/right/obligation validly cr eated by
Commonwealth law has eff ect regardless of, or subject to, State law depends
solely on the interpretation of the Commonwealth law – does the
Commonwealth law intend the operation/exercise/carrying out of the
capacity/power/right/obligation which it creates to be subject to State law.
There is no constitutional restriction on the way in which the Commonwealth
Parliament may express its intention in relation to the relationship of its law to
State laws.
The so-called 'tests' for inconsistency which had been put forward by the High
Court should be understood as guides to ascertaining the intention of the
Commonwealth Parliament.
An express statement of intention in the Com monwealth law about whether it
is intended to operate subject to or regardless of some or all State law must be
central to whether or not there is inconsistency with a State law.2
In this article I review how t hose propositions measure up against the last thirty
years of High Co urt authority on s 109. I conclude that most — though not all — High
Court authority on the meaning and application of s 109 supports, or is co nsistent with,
that analysis. This authority supports the drafting of Commonwealth laws to deal
expressly with issues of inconsistency with State law.
This article also surveys the change in legislative drafting with the more frequent
appearance of detailed provisions manufacturing and avoiding s 109 inconsistency
with State laws. Such provisions give greater certainty about the interactio n of
Commonwealth and State laws and are to be welcomed.
I conclude by arguing that even greater certainty could be achieved if State
Governments and Commonwealth Parliament and its Committees systematically and
routinely scrutinised Commonwealth Bills and delegated legislation for potential
impacts on State law so that any potential impacts on State law could be taken into
account and provided for on a more informed basis in Commonwealth law-ma king
processes.
THE LAW ON SECTION 109
The key words in s 109 are 'law', 'inconsistency', 'prevail' and 'invalid'. The terms
'direct' inconsistency and 'cover the field' inconsistency do not appear in s 109 even
though these terms often appear in discussion of s 109.
The meanings of 'prevail' and 'invalid' are well established. The Native Title Act Case
summarises the position:
If, by reason of inconsistency with a law of the Commonwealth, a State law is to the
extent of the inconsistency 'invalid' — that is 'suspended, inoperative and ineffective' …
the effect of s 109 on a State law that is inconsistent with a law of the Commonwealth is
not to impose an absolute invalidity. On the contrary, the State law remains valid though
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2 Geoffrey Lindell has supported this analysis in 'Grappling with Inconsistency between
Commonwealth and State Legislation and the Link with Statutory Interpretation' (2005) 8
Constitutional Law and Policy Review 25.
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