Section 109: INCONSISTENCY between State and Commonwealth LAWS | AUSSIE LAW
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- čas přidán 26. 07. 2024
- What happens if there is any inconsistency between state laws and laws of the Federal Commonwealth of Australia? Section 109 of the Australian Constitution gives us the answer. In this video, we will understand the meaning of "laws", "inconsistency" and "invalidity" within section 109 of the Australian Constitution and what effects these have on our legal system. We will look at the types of inconsistency of laws, and we will introduce some cases that show how the High Court of Australia has interpreted section 109 of the Australian Constitution.
0:00 - Intro
01:16 - Section 109
02:17 - Inconsistency vs Immunity
03:14 - Inconsistency vs Invalid Laws
04:34 - Clause 5 of the Constitution Act and ss 106, 107 and 108
06:19 - "Laws"
08:18 - "Inconsistency"
12:19 - "Invalidity"
12:59 - Summary
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Do you want to learn more about Australian Constitutional Law? Do you want to understand the basic concepts and principles of the Australian Constitution? You've come to the right place! Welcome to AussieLaw, the channel where we explain the facts, concepts, principles, and legal provisions of the Constitution of Australia (and of Australian Public Law in general). I hope you will enjoy our short videos!
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RECOMMENDED READINGS:
- The Constitution of the Commonwealth of Australia (Aroney, Gernagelos, Murray and Stellios) : amzn.to/2NaMwDP
- The Annotated Constitution of the Australian Commonwealth (Quick and Garran) : amzn.to/3ewJtjv
- The Constitution of the Commonwealth of Australia Annotated (Lumb, Moens and Trone) : amzn.to/3aHSkxu
- Australian Constitutional Cases (P. H. Lane)
(I earn a small percentage from these qualifying purchases [at no additional cost for you!])
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LINKS:
- The Commonwealth of Australia Constitution Act : www.legislation.gov.au/Detail...
- Ex parte McLean (1930) : jade.io/j/?a=outline&id=63452
- Clyde Engineering v Cowburn (1926) : jade.io/article/63288
- Ansett Transport Industries v Wardley (1980) : jade.io/article/66889
- Lamshed v Lake (1958) : jade.io/j/?a=outline&id=65299
- Airlines of NSW v State of New South Wales (1964) : jade.io/article/65750
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Follow me on Twitter: / renatosmcosta
And check out my Academic Profiles:
www.uq.academia.edu/RenatoSaeg...
www.researchgate.net/profile/R...
#australianlaw #australianconstitution #section109
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0:00 - Intro
01:16 - Section 109
02:17 - Inconsistency vs Immunity
03:14 - Inconsistency vs Invalid Laws
04:34 - Clause 5 of the Constitution Act and ss 106, 107 and 108
06:19 - "Laws"
08:18 - "Inconsistency"
12:19 - "Invalidity"
12:59 - Summary
Perfect, thank you.
I'm glad you liked it. The next video will bring more of the "practical" side of section 109. Stay tuned!
Thank you for your video. It is noted your reading of the Constitution referenced a superseded version (1900). Does your advice change if you were to refer to the current version? (1977)?
Regarding the term "cover of the field", should I use the case "Viskauskas v Niland (1983) 153 CLR 280 to explain the operation of this term? Thanks so much, Renato Costa.
Yes! Viskauskas is an example used in constitutional law classes to explain what "covering the field" is. Well done!
Thank you very much. It's very helpful. May I ask a question that Cth Government wants to have power to upgrade the Pacific Highway. In this case, it is clear the Cth Parliament only has power to legislate with respect to those matters listed in s 51 of the Cth Constitution. These do not include roads. I understand that according to s128, the Cth Constitution may only amended by referendum. If no such referendum has been held to extend Cth legislative power to the matter. How then does the Cth Government have power to upgrade the Pacific Highway? Thank you so much.
Hi! You are right about the Commonwealth not having legislative powers over roads or infrastructure under section 51. And you are also right that to add new heads of powers, we would need a referendum according to section 128 or an extremely loose and flexible interpretation of the heads of powers already there by the High Court of Australia. None of these has happened.
However, the Constitution gives some other mechanisms for the Commonwealth to use in such circumstances. The most commonly used, and, I assume, the one currently allowing the upgrade of the Pacific Highway, is section 96. These are usually called "tied grants" and are used by the Commonwealth to finance certain schemes and projects that do not tightly fall within their competence.
Soon enough, I will have videos about how the Commonwealth can spend money according to the Constitution. We will analyse the cases of Williams, Pape, and also section 96 of the Australian Constitution.
I hope this helps!
@@AussieLaw It's such a great advice. Thank you so much. I am your loyal student from now on ^^
it dosen't unless we have a Referendum - All power is vested in the People, so even though the media and the govts both state and federal say that is not true, they are lying to you..
What do you think a Referendum is? It is a vote by the People !
Oi Renato tudo joia? I didn't see healthcare and pandemics listed in section 51 does this mean commonwealth cannot invalidate state health / pandemic laws?
Hi Dennis, check out my video about the power to close States borders. There's a bit about that. In terms of inconsistency, the law of the Commonwealth will only prevail if the State law is inconsistent with a validly enacted Cth law (that is, enacted under an appropriate head of power. Although s51 does not mention 'health' or 'pandemic' it this section and others in the Constitution may provide the Cth with the means to either cover the field or legislate about matters that could be included in a 'state health/pandemic law'). Cheers,
Dennis, sect 51 xxii is Clear and has been Ratified 11 times in the Hight Court - No Govt in Australia has the power to Mandate pandemic laws. All State mandates are UNLAWFUL and those enforcing them are now being dragged to court and facing Lawsuits for Criminal damages.. A Council in US was Class actioned and Paid 10Million in damages to their Staff. This is a Precident for all cases in Australia and England, as we fall under the UCC for all Commercial practices any Company that also enforces Mandates will face the same Lawsuits. If you or anyone you know has lost their job due to mandates for vax for example you can sue to pants off them... minium 7 years wages...don't listen to Lawyers they are Wards of the Court system... do your own research. We should all know the Law of the country you live in and we should all recognise a liar....
Does this section 109 applies to insurance claims and/or illegal/irresponsible actions by a transporter company?
it applies to the Whole of the Commonwealth, that includes YOU