the DIVISION of law making powers, and section 109

law making powers

powers or authorities given to parliament to make laws in certain areas. They are exercisable by parliament, meaning they have the ultimate authority.

residual powers

powers that were not given to the Commonwealth Parliament under the Australian Constitution, and which therefore remain solely with the states. Sections 106, 107, and 108 of the AC protect state power

exclusive powers

powers in the AC that only the commonwealth parliament can exercise, eg defence, currency, border protection. Sections 51 and 115 relate to federal powers

concurrent powers

law making powers shared by the Commonwealth and State parliaments. This includes trade, taxation, and marriage.

Section 109

designed to help resolve conflict and inconsistencies between the state and commonwealth laws, that often occur when concurrent powers are exercised by the Commonwealth and one or more state parliaments.

what it means:

Under section 109, in the case of conflicting law, Commonwealth law prevails to the extent of the inconsistency between the two pieces of legislation. State law provisions that are inconsistent with the commonwealth law will therefore be invalid and unenforceable.

significance of section 109

A state law needs to be challenged in court in order for it to become invalid, as section 109 does not operate automatically.

• if the commonwealth law is abrogated, state law comes into force

• in some cases, it is specifically referenced that state law can continue to operate.

the High Courts involvement

can here cases where:

• it is between states, or residents of different states or both

• in which the commonwealth or someone on behalf is being sued