Inconsistency of laws: s 109

The idea

Section 109 is a comparison exercise. It takes two valid laws that each create rights, powers or duties. It resolves any conflict between them in favour of the Commonwealth.

Three tests establish inconsistency and any one of them is enough. Two are direct and one is indirect. Direct inconsistency arises where it is impossible to obey both laws at once, or where the State law alters, impairs or detracts from a right, privilege or entitlement the Commonwealth law confers. Indirect inconsistency arises where the Commonwealth law is intended to cover the field, so a State law on the same matter cannot stand even though both laws could be obeyed.

The consequence matters as much as the finding. An inconsistent State law is not struck from the statute book. It is inoperative to the extent of the inconsistency, and it revives if the Commonwealth law is repealed.

Where it comes from

The denial of rights test comes from the insurance and aviation cases. In AMP v Goulden a State law barring insurers from refusing insurance to a blind applicant would have stripped life insurers of the freedom to classify risks on their own judgment. The High Court held it detracted from the right the Commonwealth Act conferred. In Ansett v Wardley the reasoning generally preferred is that of Mason J, that a federal pilots agreement which merely assumed a right to dismiss conferred no substantive right, so the State equal opportunity law was left to operate.

Indirect inconsistency traces to Dixon J in Ex parte McLean, and Kakariki restates his test. O'Sullivan v Noarlunga Meat held that an elaborate and detailed set of Commonwealth export regulations evinced an intention to express the law completely and exhaustively, so a State licence to use premises for slaughtering export stock could not stand. Kakariki restates the test and marks its limit, holding that a Commonwealth power to remove wrecks in trading waters was only a concurrent power that left a State wreck removal power alongside it.

How it is examined

This is a problem topic. It has appeared as a six mark question in every mid semester paper since 2019 and as a ten mark part in the 2019 finals. The facts give you a Commonwealth law and a State law that touch the same subject, and the marks are for working the tests in order and naming the consequence.

1. Confirm a valid Commonwealth law and a valid State law on the same subject.
2. Ask whether both laws can be obeyed at once.
3. Ask whether the State law alters, impairs or detracts from a right the Commonwealth law confers.
4. Ask whether the Commonwealth law was intended to cover the field.
5. Name the consequence as inoperability with severance.

The marks concentrate on covering the field. Where the problem quotes a second reading speech that speaks of a national response or reach wherever in the world, treat those planted words as evidence of an intention to cover the field.

How to argue it

Fix the field before anything else. A field drawn too widely manufactures a conflict that a narrower reading dissolves. State the subject the two laws share in precise terms, then work the tests in order.

On the direct branch, the party relying on the State law will argue that both laws can be obeyed together, so no direct inconsistency arises. The party relying on the Commonwealth law will argue that the State law alters, impairs or detracts from a right the Commonwealth law confers. The pivotal question is whether the Commonwealth law confers that right or merely assumes a right the general law already provides. Where it merely assumes the right, the State law survives (Ansett v Wardley, Mason J). Where the State law strikes at the essence of the Commonwealth scheme, it detracts from the right and fails (Goulden).

On the indirect branch, the party relying on the Commonwealth law will argue that the law was intended as a complete statement of the law on the matter. The level of detail is a strong indicium, and an elaborate and exhaustive regime points to an intention to cover the field (O'Sullivan v Noarlunga Meat, Fullagar J). The party relying on the State law will point to any sign that the Commonwealth meant only a concurrent power, or that it left room for a complementary State scheme (Kakariki; Jemena). The Commonwealth can also settle the question in its own text. It may declare its law exclusive or expressly leave room for State law, and either declaration works provided the law is within Commonwealth power (Native Title Case). What it cannot do is aim a law at controlling State legislative power (Botany, Mason CJ).

Close on the consequence. The stronger view is almost always that only the inconsistent portion of the State law is displaced, so the operable remainder is severed and stands (Native Title Case). Say that the State law is inoperative to the extent of the inconsistency and would revive if the Commonwealth law were repealed. Where the field is finely balanced, grade the conclusion and name the detail of the Commonwealth regime as the pivotal factor.

Practice problems

One hundred exam-style problems across twelve topics. Pick a topic, read the problem, write your own answer in IRAC, then reveal the Pass and H1 exemplars and the examiner's comments. Step through in order or jump to a random one. Nothing you type is saved or sent anywhere.

The trap

The costliest error is mislabelling the tests. The alter, impair or detract formula originates with Dixon J in the Kakariki Case, and Goulden and Ansett v Wardley apply it as the denial of rights test. Kakariki is also the covering the field restatement. In an answer, run the denial of rights branch on Goulden and Wardley, and covering the field on Kakariki.

Two errors follow close behind. Concluding that the State law is permanently invalid overshoots. The settled position is that it is inoperative to the extent of the inconsistency and revives if the Commonwealth law goes. A State provision drafted to define itself outside the Commonwealth field is also unsafe. This is because the court reads how the laws operate rather than the label the State chose (Kakariki).

Key authorities

• s 109 Constitution — where a State law is inconsistent with a Commonwealth law the Commonwealth law prevails and the State law is, to the extent of the inconsistency, invalid, a word the cases settle as meaning inoperative.★
• AMP v Goulden — a State law that strips insurers of the freedom to classify risks on their own judgment detracts from the right the Commonwealth Act confers.★
• Ansett v Wardley (Mason J) — a Commonwealth law that merely assumes a right rather than conferring it leaves the State law to operate.★
• O'Sullivan v Noarlunga Meat (Fullagar J) — an elaborate and detailed Commonwealth regime evinces an intention to cover the field of export slaughter premises.★
• Kakariki (Dixon J) — covering intention is gathered from the terms, nature and subject matter of the enactment, and a merely concurrent power leaves the State law standing.★
• Native Title Case — an inconsistent State law is inoperative rather than void, and the Commonwealth may expressly cover or clear the field within power.★
• Botany (Mason CJ) — a Commonwealth law may clear the field unless it is aimed at controlling State legislative action or displacing s 109.★
• Jemena — dual liabilities that can both be met do not collide, and any detraction must be significant and not trivial.★