S109 Principle AND Intergonvemental PDF

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Inconsistency

Under Section 109 where there is an inconsistency between a Commonwealth law (including industrial awards - Clyde Engineering Co Ltd v Cowburn (1926) and a State law the Commonwealth law will prevail and the State law will be invalid. The word invalid mean inoperative to the extent of the inconsistency. First, we will need to examine that both laws are valid law. A State law will be considered valid because of the plenary power of the states to enact law unless there is a limitation. The Commonwealth Law will need to fall under a head of power in the constitution. (state which head it falls)

There are different types of inconsistency; direct inconsistency which arises from the impossibility to obey both laws simultaneously and indirect inconsistency where we will need to examine if the Commonwealth intends to cover a particular field and there is a State law operating in that field. In the case of Engineer’s it was firmly established the modern basis of federalism in Australia It was accepted that there are some limitations as to what the Commonwealth can’t do to the States and vice versa. The test developed in Melbourne Corporation (1947) case requires to consider if the law aims to restrict or control a States exercise of its executive authority. This was re affirmed in the case of Austin v Commonwealth (2003) where it was found that the law cannot impose a special burden on the State and discriminate against the individual State. The inconsistency should not interfere with Section 92 Freedom of Interstate Trade

Henderson v Defence Housing Authority (1997) is relevant in assessing how a State's legislative and executive actions may affect the Commonwealth's executive power, [3] although a State's executive actions in that regard appear to be restricted to the area of royal prerogative...