In 1850, half a century before Federation, Westminster Parliament passed the Australian Colonies Government Act, 1 first granting the right of legislative power to each of the six Australian colonies. This is the basis for state legislative powers, and each of it’s own constitutions.
This was never completely surrendered to the Commonwealth Parliament at Federation, the legislative powers of the federal body were actually limited to a mere 39 different matters outlined in section 51 of the federal constitution, 2 (plus several more in section 52 3 and section 90 4 section 114, 5 and section 115 6) and all other matters still remained within the jurisdiction of the state parliaments.
The Commonwealth constitution is basically a document that limits Commonwealth powers. Yes it is the ultimate source of our law but it specifically says that the states keep the powers they had prior to federation unless taken away in the constitution – (refer section 106 7 section 107 8 section 108 9 and section 118. 10)
There are EXCLUSIVE, CONCURRENT and RESIDUAL legislative powers
This is a hard concept for most OPCA adherents to grasp, and their arguments fail to acknowledge the basic nature of a federation in the form which the Commonwealth of Australia takes. Section 109 11 seems invariably to be relied upon to substantiate many of their constitutional contentions:
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
Although section 109 says that Commonwealth laws are superior to state laws, it must be understood that this is only in the sphere of CONCURRENT powers: Those powers that belong both to the states and the Commonwealth. Thus when both the states and Commonwealth have power to pass legislation in a certain area, Commonwealth laws will prevail to the extent of any inconsistencies.
The vast majority of powers that are concurrent are found in section 51 – both the Commonwealth and the states can legislate in these areas but Commonwealth laws are superior.
But what of EXCLUSIVE powers? The states are not allowed to legislate in these areas – ever. Only the Commonwealth can legislate in these areas. (See eg section 52, section 90, section 114, and section 115.)
What’s left? Aptly, whats left over are the RESIDUAL powers. If it isn’t mentioned in the constitution then the Commonwealth can’t legislate in respect of it, never – it has no power to do so, it would be ultra vires. Practically all these unmentioned powers are left to the states, section 106, section 107, section 108 and section 118 make that absolutely clear.
Most of the states powers were granted to them under the Colonial Laws Validity Act 1886 prior to the Commonwealth Constitution’s existence – and it kept these powers according to the constitution. This is a very broad area of powers – it includes all our state criminal laws (the Commonwealth can only pass laws over criminal matters if they relate to another power – social security, drug importation, etc.
The authority of these Residual Powers creates a problem for those who attempt to apply a few different pseudo legal theories, that are inevitably overruled on this one point, and therefore never succeed in appeals. One example would be disregarding Local Government because they are not recognised in the Commonwealth Constitution, and another, claiming inconsistency under section 109 regarding State Roads and Traffic legislation, both of which are, in terms of the Constitution, among the Residual Powers of the state. The Commonwealth doesn’t even have the power to legislate in respect of these matters, it would be ultra vires.
Notice the legislative powers of the federal parliament outlined in section 51 of the federal constitution are limited to a mere 39 categories…
Legislative powers of the Parliament
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to…”
The legislative powers of state parliaments however, are much broader, covering everything not included in the 39 legislative functions of the federal body…
Constitution Act 1975 (Vic) – Section 16 – 12 Legislative power of Parliament
“The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.”
Constitution Act 1902 (NSW) – Section 5 13 General legislative powers
“The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever.”
The federal constitution states that the Commonwealth must give full faith and credit to the legislative processes of the states, and the powers of the states are also protected by sections 106, 107, 108 of the federal constitution, regarding the saving of state constitutions, existing legislation, and legislative powers of state parliaments…
Section 118 – Recognition of laws etc. of States
“Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.”
Section 106 – Saving of state constitutions
“The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.”
Section 107 – Saving of Power of State Parliaments
“Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.”
Section 108 – Saving of State laws
“Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.”
This means that the existing laws of a state cannot be altered by the federal body, but only by the provisions of that particular state. For example, when the Australia Act included amendments to the constitutions of Queensland (section 13) and Western Australia (section 14). Kirby’s view in Attorney-General (WA) v Marquet (2003) HCA 67 14 was that this was inconsistent with Constitution section 106, so that the Australia Act (Cth) was not a valid exercise of Commonwealth legislative power. A majority however, thought that it was sufficient that the Act had only been passed in reliance on Constitution section 51(xxxviii), which gives the Commonwealth parliament power to legislate at the request of the State parliaments. Soon afterwards, however, in Shaw v Minister for Immigration and Multicultural Affairs (2003) HCA 72, 15 the whole Court (including Kirby) took a more comprehensive view: that the Australia Act in its two versions, together with the State request and consent legislation, amounted to establishing Australian independence at the date when the Australia Act (Cth) came into operation, 3 March 1986.
Extract from Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340: 16
“In Union Steamship Co of Australia Pty Ltd v King  HCA 55, 17 the Court stated that, within the limits of the grant, a power such as that conferred on the New South Wales Parliament by s 5 of the Constitution Act 1902 (NSW) to make laws “for the peace, welfare, and good government of New South Wales” is “as ample and plenary as the power possessed by the Imperial Parliament itself”. Moreover, at the time of the 1990 Act, the Australia Act 1986 (Cth) was in force. Section 2(2) thereof declared and enacted that the legislative powers of each State Parliament included all legislative powers that Westminster might have exercised before the commencement of that Act for the peace, order and good government of the State.”
Extract from Nibbs v Devonport City Council  TASSC 34: 18
“The argument ignores completely the sovereign authority of the Parliament of Tasmania, derived from imperial legislation and confirmed in the Australian Constitution to make laws binding within the territorial jurisdiction of Tasmania. The defendant’s argument does not accept the legitimacy and authority of such law that this Court is bound by and must enforce and apply such law. As the magistrate rightly said, the argument fails to acknowledge the basic nature of a federation in the form which the Commonwealth of Australia takes. The States of Australia are sovereign states: see ss 106 and 107 of the Constitution. Section 109 renders invalid State laws to the extent that they are inconsistent with a law of the Commonwealth. There is nothing to prevent States from legislating about local government. Whilst s 51(ii) enables the Commonwealth Parliament to make laws with respect to taxation, a State government is not thereby precluded from making such laws, provided there is no inconsistency.”
“As it was asserted in the appeal outline, the argument amounted to the proposition that where there was a constitutional argument, federal jurisdiction applied, and that the Constitution was the only source of judicial power. Mr Nibbs did not expand on this. I take it that what he meant was that as, on his argument, a constitutional issue arose, s 78B of the Judiciary Act 1903 (Cth) 19 should have been complied with, and notices given to Attorneys-General. However, this was not a cause pending in a State court exercising federal jurisdiction, nor does any matter arise under the Constitution or involving its interpretation.
A matter will not arise under the Constitution if it does not really and substantially, or genuinely, arise: see ACCC v CG Berbatis Holdings  FCA 1151; 20 (1999) 95 FCR 292 at 297; 21 Danielsen v Onesteel Manufacturing Pty Ltd  SASC 56 at –; 22 Pham v Secretary, Department of Employment and Workplace Relations  FCAFC 179 at . 23
A constitutional point must not be trivial or vexatious, or frivolous in the sense of being patently unarguable or completely devoid of merit. It was proper for the magistrate to proceed, and proper for this Court to determine the appeal.”
Extract from Rossiter v Adelaide City Council  SASC 61 24 (At 42):
“It is without merit. Because the 1988 constitutional referendum failed, local government remains a matter within the residual power of the States.”
Extract from Glew v Shire of Greenough  WASCA 260 (from 3): 25
“Before I turn to the grounds of appeal, therefore, it is desirable, so that the appellants will understand the following discussion, to set out a very bare outline of the relationships between Commonwealth and State Constitutions and the Commonwealth and State legislative powers which flow from them.
The settlement of the Australian colonies began as an executive act of the Imperial Crown. Letters Patent – in effect, public instructions – from the Crown were issued to governors. However, in 1823 the Act commonly called the New South Wales Act (4 Geo IV, c 96) was passed by the Imperial Parliament. It conferred upon the governor power to enact laws for the “peace welfare and good government” of New South Wales, with the advice of the Legislative Council. Because legislation can restrict or alter the prerogatives of the Crown, this Act began the process of restricting the power of the Crown to govern the colonies. In time, further Acts of the United Kingdom Parliament not only set up local legislatures, but also provided that those legislatures could set up, and amend, their own constitutions. One of those Acts is referred to in the preamble to the Constitution Act 1889, which is an Act passed by the Western Australia legislature of the day pursuant to that authority. When the Commonwealth Constitution was passed as an Act of the United Kingdom Parliament, the former colonies became States.
The Commonwealth Constitution is binding on all Courts and Parliaments throughout the country. To the extent that State or Commonwealth law is inconsistent with it, that State or Commonwealth law is invalid. It is, however, a Constitution which was superimposed on, and assumes the existence of, pre‑existing State Constitutions which not only continued, but which were able to be altered in accordance with their terms. So far as legislative power was concerned, s 51 of the Commonwealth Constitution listed most of the legislative powers of the Commonwealth. Those powers were not expressed to be exclusive. That is, the Commonwealth Constitution contemplated that both State and Commonwealth Parliaments would be able to make laws in relation to the matters set out in that list. It was only where the Commonwealth had passed a law in relation to one of those listed subject matters, and a State law was inconsistent with the Commonwealth law, that the State law would become invalid or inoperative (s 109). That would not be because the State lacked constitutional power to pass the law, but simply because the Commonwealth legislation was, to the extent that the Commonwealth had passed law, paramount. There is a short list of powers which are exclusive to the Commonwealth Parliament. They include, for example, the power to make laws with respect to the seat of government of the Commonwealth (s 52(i)).
Taxation, which is referred to in s 51(ii), is a non‑exclusive power, so that both State and Commonwealth Parliaments can pass laws dealing with taxation. However, because of the existence of s 109 of the Commonwealth Constitution, it is possible for the Commonwealth Parliament to give priority to its own taxation law, and/or to impose taxation at a rate such that the practical effect would be that it would not be politically possible for a State to tax the same subject matter. This was the effect achieved in relation to income tax in a case to which the appellants refer, South Australia v The Commonwealth (1942) 65 CLR 373. In other areas of taxation, where the Commonwealth has not legislated, it remains both politically and practically possible for the States to impose taxation; an example of such a tax would be land tax. The power of the State Parliaments to legislate stems in each case from the Constitution of the relevant State. In relation to Western Australia, s 2 of the Constitution Act 1889 (WA) (“the State Constitution”) empowers the State to make laws for the “peace, order and good government of Western Australia”. That is a very extensive grant of legislative power. The words “peace, order and good government” are to be understood as conferring ample and plenary power on the States to legislate for any matter having a connection with the State (Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1). The State can make any “fact, circumstance, occurrence or thing” in or connected with the State a subject of legislation (Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (New South Wales) (1937) 56 CLR 337, at 375 per Dixon J).
That broad legislative power in the State Constitution is qualified in only three ways. First, as I have noted, in some very limited areas the Commonwealth Constitution provides that the Commonwealth’s legislative power is exclusive. That prevents the State from validly legislating at all in that area. Secondly, in some cases, as I have noted, the State can validly legislate, but if there is a valid Commonwealth law inconsistent with the State law, then the Commonwealth law will prevail while it is in operation. Thirdly, some State Constitutions have some restrictions relating to the way in which legislation concerning particular subject matters can be passed, such as s 73 of the State Constitution. So far as the State Constitutions are concerned, unless there is some particular provision in the State Constitution prescribing the “manner and form” for amending particular parts of the Constitution, then the State Parliament is free to amend the State’s Constitution in any way it sees fit. That is, the State Constitutions can generally be amended as easily as any other Act. As the Privy Council has said, they occupy “precisely the same position as a Dog Act or any other Act, however humble its subject matter” (McCawley v R  AC 691 at 704).”
As stated by Quick and Garran state on page 794: 26
“The Constitution draws a line between the enumerated powers assigned to the Federal Government and the residue of powers reserved to the State Governments. Both sets of Governments are limited in their sphere of action, but within their several spheres they are supreme.”
And on page 928, Quick and Garran state that the Commonwealth Government cannot encroach on the sphere of the Residual Legislative Powers… they are solely the possession of the State Governments, and they are each sovereign over their own sphere of legislative powers. 27 This is said to be the basic structure of a federation.
SECTION 109 Inconsistency
Extract from Subramaniam v Mental Health Review Tribunal  NSWSC 918 (from 25): 28
“Section 109 of the Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Notwithstanding the abundance of case law generated by this provision, Dixon J neatly encapsulated the problem to which Section 109 is directed by two statements that appear in Victoria v The Commonwealth  HCA 82; (1937) 58 CLR 618. The first (at 630) was as follows:
When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.
The second, which immediately followed, was:
Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.
In Telstra Corporation Limited v Worthing  HCA 12 at ; (1999) 197 CLR 61 at 76-77 the Court added in relation to these two statements:
The second proposition may apply in a given case where the first does not, yet … if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies.
I should also mention the observation by Gummow J in APLA Ltd v Legal Services Commissioner of New South Wales  HCA 44 at ; (2005) 224 CLR 322 at 400, concerning the first of Dixon J’s statements:
The Commonwealth met the plaintiffs’ contention that s 109 is engaged if, in the light of the practical operation of the State law, there is anything more than a de minimis impairment of the employment of a federal right by saying that the question is always one of fact and degree. This approach should be adopted.
The starting point in the resolution of any assertion that Section 109 of the Constitution is engaged is the construction of the laws said to be inconsistent. It is only an inconsistency disclosed by the proper construction of each of those laws that will operate to invalidate the relevant State law.
The Premise of Inconsistency
Section 109 of the Constitution deals only with inconsistency between laws, as distinct from inconsistency between powers: R v Winneke; Ex parte Gallagher  HCA 77; (1982) 152 CLR 211 at 216. Thus, the circumstance that federal and state legislation may confer upon different repositories, powers in respect of the same subject matter, will not of itself engage the operation of Section 109.
To this proposition, however, must be added two qualifications. The first is that an inconsistency may arise in the practical application or exercise of the concurrent powers. In such a case, the inconsistency “is to be resolved by giving supremacy to the Commonwealth legislation in the particular situation”: Flaherty v Girgis  HCA 17; (1987) 162 CLR 574 at 588. This category of inconsistency has attracted the epithet “operational”: Commonwealth v Western Australia  HCA 5 at ; (1999) 196 CLR 392 at 417. See also AMS v AIF  HCA 26; (1999) 199 CLR 160 at .
The second qualification was expressed in Winneke (at 216) as follows:
If a federal law validly confers a power which is intended to be exclusive so that no one else can do the same thing, Section 109 directly operates, with the result that a State law conferring a power to do that thing would be invalid.”
Extract from Telstra v Worthing  HCA 12 (at 27): 29
“The applicable principles are well settled. Cases still arise where one law requires what the other forbids. It was held in Wallis v Downard‑Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 [at 398] that a State law which incorporated into certain contracts a term which a law of the Commonwealth forbade was invalid. However, it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law. [Viskauskas v Niland (1983) 153 CLR 280 at 291‑292.]. Further, there will be what Barwick CJ identified as “direct collision” where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. [Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258‑259; see also at 270 per Taylor J, 272 per Menzies J; Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 406; Dao v Australian Postal Commission (1987) 162 CLR 317 at 335, 338‑339.]. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question “would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act” [(1986) 160 CLR 330 at 339.]. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question. [Ex parte McLean (1930) 43 CLR 472 at 483; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 57‑58.] But that is not this case.”
Extract from APLA Limited v Legal Services Commissioner (NSW)  HCA 44 (from 205): 30
“In the words of Dixon J in Victoria v The Commonwealth (1937) 58 CLR 618 at 630, it ‘would alter, impair or detract from’ the Commonwealth scheme of regulation established by the [Life Insurance Act 1945 (Cth)] if a registered life insurance company was effectively precluded by the legislation of a State from classifying different risks differently, from setting different premiums for different risks or from refusing to insure risks which were outside the class of risk in respect of which it wished to offer insurance.” (emphasis added)
Against this background, the Commonwealth put a submission more narrowly expressed than that of Victoria and its supporters. The Commonwealth met the plaintiffs’ contention that s 109 is engaged if, in the light of the practical operation of the State law, there is anything more than a de minimis impairment of the enjoyment of a federal right by saying that the question is always one of fact and degree. This approach should be adopted.”
Extract from R v Winneke; Ex parte Gallagher  HCA 77 (at 4): 31
“In a federal constitution, which recognizes laws validly emanating from the States as well as from the federal legislature, it is essential to provide which law, in the event of conflict, shall be supreme. Section 109 performs that critical function and accords supremacy to federal law. It provides:
“When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
The words of s. 109 make it plain that it deals only with inconsistency between laws. It does not deal with inconsistency between powers: O’Sullivan v. Noarlunga Meat Ltd. (1956) 95 CLR 177, at p 183 . It does not deal directly with inconsistency between executive or judicial acts done under a power conferred by a federal law, on the one hand, and acts of that kind done under a State law, on the other hand. If a federal law validly confers a power which is intended to be exclusive, so that no one else can do the same thing, s. 109 directly operates, with the result that a State law conferring a power to do that thing would be invalid. However the federal law may reveal an intention that although the power which it confers is not exclusive, an exercise of that power will be exclusive; in that event, s. 109 will give paramountcy to the law under which the power is exercised, with the result that State law cannot validly operate once the power has been exercised.
Extract from Flaherty v Girgis  HCA 17 32
“The way in which the appellant put his case upon inconsistency does not call for an extensive examination of the authorities upon that topic. No question of invalidity arises, except in the s.109 sense. Clearly the federal Act is within the power given to the Commonwealth Parliament by s.51(xxiv) of the Constitution to make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the states. The state parliaments have concurrent power, subject to s.109, to make laws with respect to the service of the process of their courts and the execution of judgments. The mere fact that both the Commonwealth and the states have made laws does not of itself result in inconsistency within the meaning of s.109, particularly as the nature of those laws is to enable rather than to proscribe. Section 109 is concerned with inconsistency between laws and not powers: The Queen v. Winneke; Ex parte Gallagher (1982) 152 CLR 211, at p 216. Of course, where both Commonwealth and state legislation confer concurrent or parallel powers in relation to the same matter or thing, an inconsistency may arise in their practical application, which is to be resolved by giving supremacy to the Commonwealth legislation in the particular situation: Victoria v. The Commonwealth (1937) 58 CLR 618; Carter v. Egg and Egg Pulp Marketing Board (Vict.) (1942) 66 CLR 557, at pp 574-576. However, inconsistency of that sort is not alleged in this case, it being apparent that the relevant provisions of the federal Act and Supreme Court Rules may operate without any conflict arising in practice. In speaking of the Supreme Court Rules, it may be observed that the law of the State which is alleged to be inconsistent with the Service and Execution of Process Act is ultimately s.122 of the Supreme Court Act which authorizes the rules, but the inconsistency is to be found initially in a comparison of the federal Act with the rules to the extent to which they purport to deal with extraterritorial service within the Commonwealth.”
Extract from Commonwealth v Western Australia  HCA 5; 196 CLR 392 (from 61): 33
“The Defence Regulations do not operate to prevent entry or activity on the perimeter area, except if a defence operation or practice has been authorised by a chief of staff pursuant to reg 51(1). It would seem clear that, were authority to be granted pursuant to the Mining Act to enter upon or conduct mining activities on land in the perimeter area at a time or times specified in an authorisation under reg 51(1) for the conduct of a defence operation or practice, there would be direct inconsistency between that authorisation and the authority granted under the Mining Act. That inconsistency would result from the inconsistent operation in the particular circumstances of the Mining Act and the Defence Regulations – “operational inconsistency”, as it is called. (Victoria v The Commonwealth (1937) 58 CLR 618; Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 599-600 per Gaudron J.)
Section 109 of the Constitution operates to render a State law inoperative only to the extent of its inconsistency with a law of the Commonwealth and only for so long as the inconsistency remains. (Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 465 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ.) Although there may be “operational inconsistency” between the Mining Act and the Defence Regulations in the event and to the extent that authority is conferred pursuant to the former to enter upon or engage in activities on land in the perimeter area at a time when a defence operation or practice is authorised underreg 51(1) of the Defence Regulations, that situation has not yet arisen. Thus, at the present time, there is no inconsistency between the Mining Act and the Defence Regulations.
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