Evaluation of the significance of section 109 of the Australian Constitution
1. The significant restrictive impact that section 109 can have on state law includes:
- concurrent powers make up the majority of the Commonwealth’s powers, and s109 applies to all concurrent powers.
- the fear of losing a case on the basis of existing precedent can discourage a state parliament from passing law in the first place. For example, Commonwealth laws on matters such as the Internet have not been challenged, because previous decisions on radios and televisions have given parliaments a broad view of the concurrent communications power.
- the Commonwealth has, in recent decades, expressed an increasing desire to control every matter, regardless of whether it is expresslycontained in section 51. Their willingness to legislate in, arguably, stateinterests broadens the scope of what section 109 can apply to.
- the broad interpretation of the external affairs power makes the matters on which the Commonwealth can override state law, pursuant to section 109, virtually unlimited.
- the original doctrine of “simultaneous obedience” was narrow inscope, but the rise of the “cover the field” test since 1926 has meantthe Commonwealth hasn’t even needed to technically be in conflictwith state provisions.
The minor restrictive impact that section 109 can have on state law includes:
- section 109 only relates to areas of concurrent power. It cannot be used to invalidate state law on any matter of residual power.
- section 109 only applies if the state law is challenged in a federal court and that court decides the sections are in conflict with each other. The state law is, by default, valid – until held to be otherwise. The Commonwealth cannot make the decisionthe state law is invalidby itself.
- the Commonwealth has the ability to “clear the field”: in other words, to explicitly include in its legislation an intention for the law to work concurrently with any state law. This is an option for complementary law-making.
- the states do not lose the power to legislate; they merely lose the power to enforce those laws, and only for the period of time during which the federal law remains valid. If the federal law is repealed, the state law continues to operate.
- section 109 only applies to those sections of state law that are held to be inconsistent with federal law. The entire act will not become invalid.
2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the significance of section 109 of the Australian Constitution requires students to write about relevant significant restrictions and limited restrictions of the significance of section 109 of the Australian Constitution. Responses will vary according to the arguments selected.
3. Responses will vary according to the arguments selected. The task word ‘evaluate’ requires students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence when referring to the significant restrictions and limited restrictions of the significance of section 109 of the Australian Constitution, that section 109 has a significant restrictive impact on state law.