Section 109 of The Constitution of Australia

Section 109 Of The Constitution Of Australia

In Australia, legislative power is held concurrently by the Commonwealth and the States. In the event of inconsistency between Commonwealth and State laws, section 109 of the Constitution of Australia provides that:

Section 109, together with s. 5 of the Commonwealth of Australia Constitution Act 1900, have been considered to be the foundation for the existence of the judicial review power in Australia. In conjunction with the doctrine outlined in the Engineers Case, it has also significantly extended the reach of Federal legislative power in Australia.

"Invalid" does not mean that a State law is invalid in the postitivist sense that the State Parliament lacks power to pass it. The State law, though enacted with full validity, merely ceases to operate. Hence, in order for s. 109 to come into operation at all, there must be a valid State law and a valid Commonwealth law. When s. 109 takes effect, the State law yields to the Commonwealth law, but remains a valid law of the Parliament which enacted it. The practical significance of this will become apparent if, at some later date, the overriding Commonwealth law ceases to operate.