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Difficulty: Very hardDivision of Powers: Federal and State Responsibilities

The Australian Constitution divides law-making powers between the Federal Parliament and the State Parliaments. In instances where both levels of government have the power to make laws on the same subject, but a State law is found to be inconsistent with a Federal law, what does the Constitution require to happen?

  1. The Federal law prevails, and the State law is invalid only to the extent that it contradicts the Federal law.Answer
  2. B
    The High Court must strike down both laws to preserve the 'Separation of Powers' between the legislative and judicial branches of government.
  3. C
    The State law remains supreme within that state's borders to protect the residual powers granted to the States at Federation.

Answer

The Federal law prevails, and the State law is invalid only to the extent of the inconsistency.
The correct answer follows Section 109 of the Australian Constitution, which provides that if a State law is inconsistent with a Federal law, the Federal law shall prevail, and the State law shall be invalid to the extent of that inconsistency. This ensures that on shared matters, like marriage or taxation, the national law remains consistent across the whole country.

Step-by-Step Solution

1
Identify the relationship between Federal and State legislative powers.
The Australian Constitution defines a 'division of powers' where some powers are exclusive to the Federal government, some are residual to the States, and others are shared (concurrent).
Understanding how power is shared is necessary to address a conflict between levels of government.
2
Locate the constitutional rule for resolving legislative conflicts.
Section 109 of the Australian Constitution specifically addresses inconsistencies between Federal and State laws.
Section 109 is the 'tie-breaker' rule in the Australian legal system.
3
Apply the rule to the scenario of a conflicting law.
When a conflict exists, the Federal law takes precedence over the State law.
This maintains a unified national approach on matters where the Federal government has constitutional authority to act.
4
Determine the status of the State law.
The State law is only invalid 'to the extent of the inconsistency,' meaning the rest of the State law remains valid if it does not conflict.
The Constitution seeks to preserve as much state legislative power as possible while ensuring federal supremacy on the specific point of conflict.

Key Concept

Section 109 Inconsistency Rule
Estimated Time:2m 0s
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Topics

Division of Powers: Federal and State Responsibilities

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