When laws conflict, which one prevails?

Added: 2026-05-09

[00:00:06]Welcome back to the constitutional clarion. I often talk about the constitutional power to make laws and the limits on that power. But another important issue concerns conflicting laws. Ordinarily, a person cannot obey two conflicting laws and shouldn't be held liable for failing to obey one in order to obey the other. So what are the basic rules? In this video, I'm going to discuss the hierarchy of laws and the operation of section 109 of the Commonwealth Constitution, which deals with the inconsistency of laws. I'm going to start with the hierarchy of laws within a single jurisdiction. What if there's inconsistency between the common law which is judge made law built on precedents and legal principles developed over centuries and statutes which are laws enacted by parliaments?

[00:00:59]The answer is that the statute enacted by the democratically elected parliament prevails over the common law. Now there is a slight tweak on that which is known as the principle of legality. It says that parliaments are presumed not to intend to override common law rights unless they do so really clearly. So it is possible in rare cases that the common law will prevail simply because the statute as interpreted according to this presumption by a court is not clear enough about limiting common law rights.

[00:01:37]But the general rule is that statutes override the common law where there's a conflict between the two. What about inconsistency between a statute and a regulation or some other kind of subordinate instrument? These are instruments that are made by the executive according to powers delegated to them by statute.

[00:01:59]First, the subordinate instrument must fall within the scope of the power in that statute that delegates the power to make it. If not, it will be invalid.

[00:02:11]But in general, an inconsistent statute will override a subordinate instrument.

[00:02:16]This is so except in very unusual cases where a Henry VIII clause is included in a statute which permits the making of a subordinate instrument which can amend a statute. Now I might do another video on Henry VII clauses one day uh but not now. What about an inconsistency between two statutes of the same jurisdiction?

[00:02:40]It might be resolved by statutory interpretation just to avoid the inconsistency but otherwise the rule is that the statute enacted later impliedly amends or repeals the earlier made statute.

[00:02:53]Sometimes there are particular statutes or provisions of statutes which are entrenched.

[00:03:00]This means that they can only be amended or repealed by following a special procedure such as approval by the people in a referendum or a vote of a supermajority in parliament or by including a particular form of words or by expressly stating in the amending statute that that's what you're doing.

[00:03:21]You're amending or repealing that entrenched statute. Now, this is known as a manner and form constraint. And I've done a couple of videos in the past on manner and forms. So you can look at them there to find out more about it.

[00:03:35]What it means is that the later inconsistent law is invalid unless it has complied with that constraint assuming of course that the matter and form constraint is legally effective which of course is another issue. Now, this is because the later statute cannot impliedly amend or repeal the entrenched law without following those requirements.

[00:04:00]This rule is relevant to state constitutions.

[00:04:03]Some parts of state constitutions are entrenched, meaning that a later law cannot validly amend or repeal them expressly or impliedly or be inconsistent with them unless the requirement such as a successful referendum is met. So entrenched provisions of state constitutions will override inconsistent laws unless the manner and form requirement is satisfied.

[00:04:32]But not all provisions in state constitutions are entrenched. The unntrenched ones can be amended expressly or impliedly by later ordinary legislation. In such a case, if there's an inconsistency, the later enacted law will prevail over the unentrenched state constitutional provisions.

[00:04:54]This, of course, becomes far more complicated when there's more than one jurisdiction involved, such as in a federation.

[00:05:01]The Commonwealth Constitution contains two rules which deal with such matters.

[00:05:07]First, there's the status of the Commonwealth Constitution itself in this hierarchy.

[00:05:12]It is a fully entrenched constitution because none of its provisions can be amended without the approval of the people in a referendum. This means that if any type of law in Australia is inconsistent with the Commonwealth Constitution, it's invalid. The Commonwealth Constitution cannot be impliedly amended or repealed by any statute, federal or state. The Common Law must also be applied in a way that is consistent with the Commonwealth Constitution.

[00:05:43]But as I've discussed in an earlier video, sometimes the Commonwealth Constitution's operation can be altered by statutes where the Constitution itself permits this. For example, section 5137 of the constitution allows for the expansion of Commonwealth legislative power by the states enacting laws that refer particular matters to the Commonwealth Parliament for it to legislate about. This does not amount to inconsistency with the Commonwealth Constitution because it's actually permitted by the Commonwealth Constitution.

[00:06:18]There are also many provisions in the Commonwealth Constitution that say until the Parliament otherwise provides. It sets out a temporary provision until such time as Parliament enacts a law to alter it. This of course is also valid because it's expressly permitted by the Constitution.

[00:06:38]The status of the Commonwealth Constitution is dealt with in its covering clauses. Now these are the first eight clauses of the Commonwealth of Australia Constitution Act 1900.

[00:06:49]Covering clause five says that the Constitution Act shall be binding on the courts, judges and people of every state and of every part of the Commonwealth.

[00:07:02]This underpins the effectiveness of the entrenchment of the Commonwealth Constitution and protects it from amendment by ordinary legislation.

[00:07:10]What about where there's inconsistency between a commonwealth law and a state law? This is where the other rule in section 109 of the Commonwealth Constitution comes into play. It says, "When a law of a state is inconsistent with the law of the Commonwealth, the latter shall prevail and the former shall to the extent of the inconsistency be invalid."

[00:07:37]The short answer, therefore, is that where there's an inconsistency between a Commonwealth and a state law, the Commonwealth one prevails.

[00:07:45]But it's actually a little bit more complex than that. First, section 109 applies to laws. Now, what does that mean? It means statutes and subordinate instruments such as regulations.

[00:08:00]It does not, however, apply to the common law. One can't argue that the common law is a commonwealth law and therefore overrides state statutes. The basic rule remains that statutes override the common law.

[00:08:16]Section 109 also applies to Commonwealth industrial awards to the extent that those awards are given the force of a commonwealth law by Commonwealth legislation.

[00:08:28]The next important point is that before section 109 applies, there must be a valid Commonwealth law and a valid state law that are inconsistent.

[00:08:40]If the Commonwealth law is invalid for some other reason, for example, there was no head of power to enact the law or it breached a limitation in the constitution, then it's not going to prevail over a valid state law.

[00:08:56]Then there's the issue of territories.

[00:08:59]Section 109 only deals with inconsistency between the laws of a state and the laws of the Commonwealth.

[00:09:06]It doesn't deal with conflicts between the laws of a territory and the Commonwealth. In such a case, the law of the Commonwealth will prevail, not because of section 109, but because the territory legislature is subordinate to the Commonwealth Parliament. Territory legislatures are established by Commonwealth legislation and they're given their powers by that legislation.

[00:09:32]They cannot legislate beyond the powers that are conferred upon them by Commonwealth legislation. Commonwealth legislation can also restrict those powers both expressly and impliedly.

[00:09:44]This is dealt with explicitly in section 28 of the ACT self-government act which provides that a provision of an act law has no effect to the extent that it's inconsistent with a law of the commonwealth in force in the territory.

[00:10:00]What about inconsistency between the laws of two different states? The Commonwealth Constitution just doesn't deal with that. Mostly state laws apply within their own jurisdiction and don't purport to apply with extr territorial effect outside the state. In other states, for example, if there is an inconsistency, however, a court will ordinarily try to deal with it through statutory interpretation to resolve how the two laws can operate together without conflict.

[00:10:34]What about an inconsistency between a state law and a territory law? Does a territory law count as a commonwealth law for the purposes of section 109?

[00:10:46]It appears that territory laws are not treated as commonwealth laws for this purpose. So any such conflict would again most likely be resolved by a court engaging in statutory interpretation to determine the proper application of each law.

[00:11:03]Then there is the part of section 109 that says that a state law shall to the extent of the inconsistency be invalid.

[00:11:14]Now what does this mean? The wording used here invalid is unfortunate because it can't mean that the law was never validly enacted. This is because section 109 refers to it as only being invalid to the extent of the inconsistency.

[00:11:33]The high court has held that what it really means is that the inconsistent part is inoperative to the extent of the inconsistency for as long as that inconsistency exists.

[00:11:46]This means that all the other sections in the state law that are not inconsistent can continue to operate even though the inconsistent bit is inoperative.

[00:11:58]This also gives rise to an interesting timing issue. These sections that are rendered inoperative by section 109 because of their inconsistency with the commonwealth law are only inoperative while that inconsistency exists.

[00:12:15]If the Commonwealth law is then repealed or amended so that there's no longer an inconsistency, then those inoperative state provisions just pop back up into legal effect again. They sit there dormant while they're inoperative rather than being struck down as having been invalidly enacted. If the source of the inconsistency is removed, they then become operative again.

[00:12:44]This also highlights the difference between a law, federal law or state being inconsistent with the Commonwealth Constitution and a state law being inconsistent with the law of the Commonwealth. If a law is inconsistent with the Commonwealth Constitution, then there was no power to make it. It's invalid and it doesn't revive. But if a state law is inconsistent with a commonwealth law other than the constitution, then section 109 applies so that the state law is inoperative to the extent of the inconsistency only and that inoperative part can become operative again if the inconsistency is removed.

[00:13:26]Finally, how does one assess where the laws are inconsistent? The simplest way of describing this is to refer to direct inconsistency and indirect inconsistency. Although some high court judges don't like that terminology and consider that a more nuanced test should apply. So sure, if you're arguing this before the high court, you should focus on the more nuanced approach. But for the purposes of giving you the gist of how this works, I'm going to stick to using those categories.

[00:14:00]There are two forms of direct inconsistency. The first is the most obvious one, and that is that it's impossible to obey both laws. If a Commonwealth law prohibits you from doing something and the state law requires you to do that thing, then you can't obey both. There's therefore a direct inconsistency.

[00:14:24]Accordingly, you have to obey the Commonwealth one and the state law will be inoperative to the extent of that inconsistency.

[00:14:33]The second category of direct inconsistency is known as the denial of rights test. This test applies where one law permits something while the other prohibits the same thing. For example, the Commonwealth law confers a right, a power, or a privilege, and the state law destroys or modifies it, or vice versa.

[00:14:54]It's not impossible to obey both laws because you could simply not exercise the right, power, or privilege. However, there's still an inconsistency because the state law seeks to prohibit or restrain actions that are authorized by the Commonwealth law or the state law authorizes actions that are prohibited or restrained by the Commonwealth law.

[00:15:18]The more controversial and difficult category of inconsistency is known as indirect inconsistency.

[00:15:25]It arises where a commonwealth law is intended to cover the entire field of a particular subject and to do so exhaustively to the exclusion of any state law. Now I'm going to leave that one for a future video which will go into the cases and examples in greater detail. Thank you for watching or listening to the constitutional clarion.

[00:15:51]I hope this has given you a good idea about the hierarchy of laws and how the rules work about inconsistency between laws. And as always, I look forward to your company again next time. Goodbye.