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QLDLegal StudiesQuick questions
Unit 3: Law, governance and change
Quick questions on Section 109 of the Constitution and inconsistency: QCE Legal Studies
11short Q&A pairs drawn directly from our worked dot-point answer. For full context and worked exam questions, read the parent dot-point page.
What is the text?Show answer
Section 109 of the Constitution provides:
What is the three forms of inconsistency?Show answer
The High Court has recognised three forms.
What is leading cases?Show answer
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (the Engineers Case). Set the modern approach: Commonwealth heads of power are interpreted on their natural meaning. The reserved state powers doctrine and implied intergovernmental immunities were rejected.
What is practical operation?Show answer
Section 109 has been particularly significant in Commonwealth-state conflicts over:
What is significance?Show answer
Section 109 is the central device for managing Commonwealth-state legislative conflict. It implements Commonwealth supremacy in concurrent areas without disrupting state legislative power in residual areas. Without s 109, the resolution of legislative conflicts would require a referendum each time, paralysing the federal system.
What is 1. Direct inconsistency: simultaneous obedience impossible?Show answer
The state law and Commonwealth law impose directly contradictory obligations. A person cannot comply with both.
What is 2. Direct inconsistency: state law alters, impairs or detracts?Show answer
The state law diminishes the operation of the Commonwealth law, even where literal simultaneous obedience is possible. Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466.
What is 3. Indirect inconsistency?Show answer
The Commonwealth law manifests an intention to cover the field exhaustively. Any state law operating in that field is inconsistent. Ex parte McLean (1930) 43 CLR 472.
What is clyde Engineering Co Ltd v Cowburn 37 CLR 466?Show answer
The Commonwealth Conciliation and Arbitration Act 1904 (Cth) was held to override a NSW provision affecting working hours that detracted from the Commonwealth scheme.
What is ex parte McLean 43 CLR 472?Show answer
Established the cover-the-field test for indirect inconsistency.
What is commonwealth v Australian Capital Territory 250 CLR 441?Show answer
The High Court struck down the Marriage Equality (Same Sex) Act 2013 (ACT) on the ground that the Marriage Act 1961 (Cth) (as it then stood) was intended to cover the field of marriage. The ACT Act could not operate concurrently. The Commonwealth subsequently amended the Marriage Act 1961 (Cth) in 2017 to recognise same-sex marriage.