Leslie Massey
Australia has three levels of government that work together to provide services to the country. The federal parliament, located in Canberra, the nation's capital, makes laws for the whole of Australia. State/territory parliaments are located in the capital cities of each of the six states and two territories and make laws for their respective state or territory. In the event of conflicting laws passed by both federal and state parliaments, section 109 of the Australian Constitution states that the federal law overrides the state law.
| Characteristics | Values |
|---|---|
| Number of government levels | 3 |
| Federal Parliament location | Canberra |
| State/territory parliaments location | Capital cities of each of the 6 states and 2 territories |
| Local councils location | Each local council division |
| Federal law vs. State law | Federal law overrides state law in case of conflicting laws on the same subject |
| Federal Parliament's power over territory law | Can override territory law at any time |
| Areas of conflicting laws | Environment, health, education, heritage protection, euthanasia, same-sex marriage |
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What You'll Learn
Federal law overrides state law in Australia if they conflict
Australia has a federal system of government, with legislative powers shared between the Commonwealth and the six states. The Federal Parliament, located in Canberra, makes laws for the entire country. Meanwhile, the six state parliaments make laws for their respective states.
In the event of conflicting laws passed by the federal and state parliaments, Section 109 of the Australian Constitution stipulates that the federal law takes precedence and the state law becomes inoperative. This provision ensures that when an 'inconsistency' arises between federal and state laws on the same subject, the federal law prevails.
For instance, in the case of "McBain v Victoria", the Federal Court found a direct conflict between a Victorian law and the Commonwealth Sex Discrimination Act 1984. The Victorian law required a woman to be married or in a de facto relationship to be eligible for IVF treatment, while the Commonwealth law prohibited denying services based on marital status. In this case, the Commonwealth law took precedence, rendering the inconsistent parts of the Victorian law inoperative.
It is important to note that determining whether an inconsistency exists between federal and state laws can be complex. The High Court of Australia, as per Section 71 of the Constitution, is tasked with resolving disputes between the federal and state governments over their law-making powers. The Court decides whether a law is constitutional, and if it is deemed unconstitutional, the law is overruled.
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Determining if an inconsistency exists can be tricky
Australia has three levels of government that work together to provide services to the people. The federal parliament, located in Canberra, makes laws for the entire country. Six state and two territory parliaments make laws for their respective states or territories. Over 500 local councils make local laws (by-laws) for their region or district.
Section 109 of the Australian Constitution states that when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the inconsistent parts of the state law become inoperative. However, determining whether an inconsistency exists can be challenging. An inconsistency might arise if a state and federal law relate to the same subject matter, making it impossible to obey both laws. For example, in McBain v Victoria, the Federal Court found a direct conflict between a Victorian law and the Commonwealth Sex Discrimination Act 1984. The Victorian law required a woman to be married or in a de facto relationship to be eligible for IVF treatment, while the Commonwealth law made it unlawful to refuse services based on marital status.
To identify an inconsistency, three questions should be asked: Section 109 only applies to 'laws', including Acts of Parliament, subordinate or delegated legislation, and other instruments given effect by legislation. On the other hand, common law and administrative orders or directions are not considered 'laws' under Section 109. Additionally, a State law may be inconsistent if the Commonwealth law is intended to be a complete statement on the subject matter, leaving no room for State laws to operate in that area. This is known as the 'covering the field' test. However, working out the intention of the Commonwealth law is not always straightforward and requires examining the terms, nature, and subject matter of the law.
In some cases, the High Court may need to resolve disagreements between the federal and state governments over their law-making powers. For instance, in the case of Work Health Authority v Outback Ballooning Pty Ltd, the High Court applied the 'covering the field' test to determine whether a Commonwealth law intended to exclude or limit the concurrent operation of State laws.
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The High Court decides if a law is unconstitutional
In Australia, the High Court is responsible for resolving disagreements between federal and state governments over their law-making powers. This means that when a law is contested or challenged, the High Court decides whether the Constitution gives the relevant parliament the power to make this law.
The High Court has the authority to deem a law unconstitutional and invalid if it decides that Parliament has exceeded its constitutional power. This process is not considered judicial review, although it may be a consequence of one. Judicial review refers to the power of the courts to review decisions of the executive government, such as those made by a council or a minister. However, it is important to note that the High Court, like all common law courts, cannot veto legislation nor provide advisory opinions. Its role is limited to deciding controversies between litigants or in criminal cases within its original jurisdiction or as the final appellate court for federal, state, and territory law.
The High Court considers the terms, nature, and subject matter of the Commonwealth law in question to determine if it is intended to be a complete statement of the law on a particular subject. For example, a high level of detail in the legislation might indicate that it is intended to be comprehensive. Additionally, certain subjects are considered to require uniform regulation, such as the prevention of collisions at sea.
The High Court has ruled on several notable cases where it found federal laws to be unconstitutional. One such case is the Petroleum and Minerals Authority case, where the High Court ruled that the passage of the Petroleum and Minerals Authority Bill did not adhere to the provisions of Section 57 of the Constitution and was therefore not a valid law. Another example is the Pharmaceutical Benefits Act 1944, which the High Court deemed unconstitutional as it was not authorised by the appropriation power in Section 81 or the incidental power in Section 51(xxxix) of the Constitution.
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Commonwealth law may 'cover the field'
In Australia, the Commonwealth law may cover the field, meaning that it is intended to be a complete statement of the law on a particular subject matter, leaving no room for State laws to operate in that area. This is known as the "covering the field" test.
The "covering the field" test was first suggested by Justice Isaacs in 1910 and was later adopted by Justice Dixon in Ex parte McLean. In the case of Work Health Authority v Outback Ballooning Pty Ltd, the High Court applied the test to determine whether a Commonwealth law covered the field of hot air balloon safety. The case arose after a woman died while boarding a hot air balloon in the Northern Territory, and a complaint was filed against the hot air balloon company for failing to minimise risks for embarking passengers. The complaint was initially dismissed on the basis that the subject matter was covered by the Commonwealth Civil Aviation Act 1988. However, on appeal, the High Court found that the Commonwealth law did not intend to exclude the operation of State law in this case.
Determining whether a Commonwealth law intends to cover the field can be challenging. Where there is no express intention, attention must be paid to the terms, nature, and subject matter of the law. A high level of detail might indicate that the Commonwealth law intends to cover the field. Additionally, certain subject matters are considered to require uniform regulation, such as the prevention of collisions at sea.
The "covering the field" test involves three steps:
- Identifying the field or subject matter regulated by the Commonwealth Act;
- Determining whether the Commonwealth law intended to regulate that subject matter completely;
- Assessing whether the State law interferes with or intrudes upon the field covered by the Commonwealth law.
The "covering the field" test is a powerful instrument for ensuring the supremacy of Commonwealth law in Australia. It allows the Commonwealth to assume a dominant position in the Australian federation and extend the reach of federal legislative power.
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State laws relate to matters of state interest
In Australia, the federal Parliament has legislative powers over certain areas, as listed in sections 51 and 52 of the Constitution. However, the Constitution also reserves significant law-making powers for the states, known as residual powers. These powers allow state laws to relate to matters of state interest.
State laws are enacted by state parliaments and enforced within their respective states or territories. Matters of state interest can include various topics, such as the environment, health, education, heritage protection, euthanasia, and same-sex marriage.
While the federal Parliament can override state laws in certain circumstances, it is important to note that the interplay between federal and state laws is complex. In some cases, state laws may cover the field, indicating that the Commonwealth law intends to be a comprehensive statement on the subject matter, leaving no room for state laws to operate.
State laws can also be directly inconsistent with federal laws, making it impossible to obey both. For example, in the case of McBain v Victoria, the Federal Court found a conflict between a Victorian law requiring a woman to be married for IVF treatment and the Commonwealth Sex Discrimination Act 1984, which prohibited refusing services based on marital status.
Determining whether an inconsistency exists between federal and state laws can be challenging, and it is a matter of judicial interpretation. The High Court of Australia plays a crucial role in resolving disagreements between federal and state governments over their law-making powers.
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Frequently asked questions
Yes, under section 109 of the Australian Constitution, if a state parliament and the federal Parliament pass conflicting laws on the same subject, then the federal law overrides the state law.
An inconsistency arises, and the Commonwealth law prevails while the inconsistent parts of the State law become inoperative.
In McBain v Victoria, the Federal Court found a direct conflict between a Victorian law, which required a woman to be married or in a de facto relationship to be eligible for IVF treatment, and the Commonwealth Sex Discrimination Act 1984, which made it unlawful to refuse services based on marital status.
The three levels of government in Australia are the Federal Parliament, State/Territory Parliaments, and Local Councils.
