Determining the Validity and Operativeness of Australian Legislation

This report delves into the intricacies of Australian Constitutional Law, focusing on the validity and operativeness of both state and commonwealth legislation. It examines the application of Section 109 of the Australian Constitution, which addresses legislative inconsistencies, and explores the impact of the Housing Crisis Reaction Act 2019. The report utilizes a case study involving Tristan, a property seller, to illustrate the practical application of legal principles. It analyzes the roles of the state and commonwealth governments, the application of tests such as the simultaneous obedience test, conferred right test and cover the field test, and the implications of non-compliance with relevant laws. The report concludes by emphasizing the importance of complying with valid legislation, highlighting the supremacy of commonwealth law in cases of conflict, and providing guidance to Tristan's solicitor regarding compliance with the Commonwealth Australian Housing Act 2019.

Australian Constitutional
Law
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Contents
INTRODUCTION...........................................................................................................................4
A. Whether state legislation is valid and operative.....................................................................4
B) Determining Whether the commonwealth legislation is valid and operative........................7
CONCLUSION................................................................................................................................8
REFERENCES................................................................................................................................9
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INTRODUCTION
A constitution can be defined as the set of rules by which nation as well as state is run. In
context of Australia, the Australian constitution is drafted numbers of constitutional conventions.
The different laws such as housing crisis act 2019 have been passed by government in the nation
in order to assist people in dealing with the issue of continuous decline in the value of their
residential property. It is very much important for people living in Australia to comply with
Housing crisis reaction act 2019 to comply with such legislation, due to the failure of law an
individual might have to 100 penalty or three months imprisonment according to the section 5 in
the act.
The report has focus on analysing the way whether state legislation is valid as well as
operative. Complete study is based on the case study of Tristan in which an individual has enter
into a contract for sale of homes from a corporate developer in Auburn. And has got the notices
under commonwealth Australian housing act.
MAIN BODY
A. Whether state legislation is valid and operative
State law can be referred to as the law which is designed as well as implemented by the
state government in order to solve specific issue. In context of Australia, the laws has been
formed by the states government while it was a colony that is before the establishment of
Australian constitution.
Section 109 of the Australian constitution deals with legislative inconsistency between
federal as well as state legislation. It is the section 109 in Australian constitution which also
states that valid federal norms override inconsistent state legislation. In addition to this, section
109 also defines the extend of the inconsistency in the state laws. In context of Australian
constitution the section 109 is considered to be as analogue to the supremacy in the United states
constitution as well as paramount doctrine in single jurisdictions is considered to be as more
persuasive in the others. In addition to this,. Section 109 in the constitution of Australia states
that when a law of state is inconsistent with the legislation of the common wealth the latter is
required to be followed by the people in the nation. The section 109 also states that in context of
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the inconsistency in state legislation that the law designed by the common wealth are need to be
followed by people in the nation. The section 109 in association with section 5 of the
commonwealth Australia which is not an element of the constitution in Australia is considered to
be s foundation for the existence if the judicial review power in Australia. The section 5 in the
Australian constitution states that all the norms implemented by the members in the parliament
are binding on the judges in the lower courts and also on people residing in every state. It is also
applicable to each part of common wealth .
In addition to this, invalidity of the state legislation does not represents that the state
legislation is invalid in the positivist sense which means that parliament lacks power to
implement the state legislation. In other words, the state legislation through enacted with
complete procedural validity merely has operative force. It has been found from the above
discussion that The section 109 in Australian constitution in order to came into operations
requires state legislations as well as highly validity of common wealth legislations. State
legislation remain the valid common wealth law as it is enacted the members in the parliament.
In addition to this, it has been analyzed that in context of Australian constitution when
section 109 came into force the state legislations yields to the commonwealth norm, but it
remains a valid legislations of the parliament as state law came into force by the act of
parliament in Australia. The practical application of the state law has become apparent at later
data till then common wealth legislations ceases to operate.
The emergence of doctrine in section 109 in Australian constitution has lead to the
development of different approaches which can be utilised by Tristans for determining whether
there is inconsistency in states law or not. The three main approaches which can be utilised for
measuring the inconsistency in the state law includes simultaneous obedience test , conferred
right test and cover the field test. The simultaneous test will assist Tristan in identifying the laws
which are required to be followed by him while selling his residential house. Conferred test will
assist Tristan in determining whether one legislation confer a right which other norm purports to
take away. The last and important test that is cover the field test will support Tristan in
identifying whether federal legislation cover the field of the problem or not. The initial two tests
that is simultaneous obedience and conferred right test includes direct inconsistency and last test
that is cover the field test involves indirect consistency of state law.
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It has been analysed from the given case study that Australia is facing crisis. The other
thing which has been discovered from the given case scenario is that there has been great decline
in the residential properties of those people who are residing in Urban Areas. Considering the
issue of continuous decline in the prices of the residential property NSW that is state government
has implemented the housing crisis reactions act 2019. It is a legislation related to half trade as
well as market transactions in the NSW housing market for the period of six months. Housing
crisis ct has been implemented in order to assist NSW government in determining long term
response to housing affordability matters. It is the act which provides progressions for
conveyance of real property under real property act. In context of given case scenario, Tristan
fails to follow the law then he might have to pay 100 penalty or might have to face three months
prisonment1.
In context of given case study, it is impossible for the Tristan to comply with both states as
well as commonwealth law. In context of Australia, the considering the issue of continuous fall
in the value of the residential value the state government in the nation has implemented some
regulations as well as acts in order to deal with such types of responses. In context of given case
scenario, it has been analysed that both commonwealth and state government has implemented
laws. Considering all situation, Tristan solicitor is provided that he should comply with
Commonwealth Australian Housing act 2019 as it is the legislation which is implemented by the
parliament and is high validate. Complying with the commonwealth housing act 2019 Tristan
will able to avoid the penalties or imprisonment 2. If commonwealth would have not
implemented any law related to sale of residential house then in such situation Tristan solicitor
would have been given with advice to comply with the norms enacted by state government. But
it does not mean that the state law is in validated. State law are also required to be considered by
Tristan while selling his residential house. The solicitor of Tristan is required to conduct the
1 Crabtree, L., 2018. Self-organised housing in Australia: housing diversity in an age of
market heat. International journal of housing policy, 18(1), pp.15-34.
2 Ferguson, G., 2018. Constitutional recognition of first Peoples in Australia: Theories and
comparative perspectives [Book Review]. Australian Aboriginal Studies, (1), p.78.
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cover the three field test in systematic procedure which mainly involves three steps these are
identification of the field or subject matter, executing an analysis in order to determine whether
common wealth legislation intends to regulate the subject matter3. The last step of the cover the
field test is required to include determination whether the state legislations interfere with the
field covered by common wealth legislation. It has been found from the above that the state law
is invalid to the extend if it is inconsistent and have adverse effect in operations as well as on the
objectives of policies.
B) Determining Whether the commonwealth legislation is valid and operative
Common wealth legislation is basically a norm which is formed as well as implemented by
the members of parliament in Australia. In context of Australian legal system, parliament is the
main authority who has right to create legislation.
The common wealth in Australia has not utilised its constitutional power as the provider of
funds for housing program to state in order to set standards as well as priorities in context of
hosing or even in relation of coordination of different events. In context of Australia, nation does
not have any strategies related to housing. In addition to this, private rental law does not conform
to domestic as well as global standard. In context of Australia, private rental law has failed to
protect the right to adequate housing in an effective manner4. The human right as well as equal
opportunity commission does not have cultural, social and economic rights including the rights
to housing. In context of the given case scenario, the housing law which is passed by
commonwealth is not operative and is invalid.
In context of Australian constitution, common wealth law is operative as well as valid as
these norms are enacted by the members in the parliament. If the norms are enacted by the
common wealth it overrides the state laws on the same matter. In context of given case scenario,
3 Martin, C., 2018. Housing reform and classical liberal governmentality before the social
housing era. In Remaking Cities—Proceedings of The 14th Australasian Urban History
Planning History Conference, Melbourne (pp. 303-313).
4 Andersen, M.J., Williamson, A.B., Fernando, P., Wright, D. and Redman, S., 2018.
Housing conditions of urban households with Aboriginal children in NSW Australia:
tenure type matters. BMC public health, 18(1), p.70.
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Tristan solicitor can utilised the cover the field test in order to test the factors which are
inconsistent in commonwealth law5. It is required by Trivants solicitor to conduct the cover the
field test in systematic procedure which includes identification of the field or subject matter
which is govern as well as regulated by commonwealth, determination as to whether the
Commonwealth law intended to regulate that subject matter completely. The last step in the
cover the field test is determination as to whether the State law interferes with or intrudes upon
the field covered by the Commonwealth law.
In context of given cast scenario, it has been analysed that the common wealth
government is highly concerned about the fall in the value of residential property rather than the
stamp duty revenue, In context of Australia, government has implemented the housing act in
order to prevent the market crash in the future6. The housing act 2019 consists of the following
parts which are as follows section 2 is related to the half trade as well as market transactions in
Australian housing market which assists commonwealth government in determining an
appropriate long term responses to housing issues faced by the people in the nation. In context
of the given case scenario, solicitor of Trivans has been provided with suggestions to keep record
of all transactions which trivans has facilitated while selling his residential house. As
documented recorded as well as maintained during the time of sell or purchase of residential
property can be utilised as an evidence when government or tribunal in the court. The section in
commonwealth which is operative and valid states that discretion, invalidate any transaction
involving the transfer of real property, such that a transaction is void ab initio. In addition to
this, section 8 in common wealth law related to the housing dictates that the rules which are
required to be followed by Triavns while transferring property to a person whose resides
outside Australia 7. Trivans been provided with solution to section 8 which is related to the
transfer of the residential property , as it will assist him in avoiding the legal issues,.
5 Wong, P., Higgins, D. and Soemarsono, C., 2018. Australian Housing Market and the
Indonesian Foreign
6 Real Estate Investment. In APHRN 2018: Smart and Sustainable Housing Futures (pp. 87-
97). University of Hong Kong.
7 Cronin, K., 2019. Law Reform in a Federal System. European Journal of Law Reform, 21(1), p.33.
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CONCLUSION
It has been concluded from the report that complying with the laws is very much
important, as failure can lead to high penalty as well as imprisonment. The other fact which
as been found during the study is that among both norm enacted the parliament as well as
laws formed by the state government, the legislation formed by the parliament should be
given much importance. It has also been concluded that in context of Austrian constitution
the state law is validate. The other fact which has been discovered from the study is that the
laws made by the act of parliament in Australia is binding on the smaller courts.
The three different approaches has been highlighted in the report which can be utilised
by an individual for measuring the consistency of legislations made by state government.
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REFERENCES
Books and Journals :
Ferguson, G., 2018. Constitutional recognition of first Peoples in Australia: Theories and
comparative perspectives [Book Review]. Australian Aboriginal Studies, (1), p.78.
Byrne, S., 2018. Intellectual property in Australia [Book Review]. Ethos: Official Publication of
the Law Society of the Australian Capital Territory, (248), p.58.
Arcioni, E. and Stone, A., 2019. Constitutional Change in Australia: The Paradox of the Frozen
Continent.
Walters, R., Mavcic, A. and Harvey, M., 2018. Human Rights Law: Australia and
Slovenia. Liverpool Law eview, 39(3), pp.197-219.
Loveland, I.D., 2018. Constitutional law. Routledge.
Crabtree, L., 2018. Self-organised housing in Australia: housing diversity in an age of market
heat. International journal of housing policy, 18(1), pp.15-34.
Andersen, M.J., Williamson, A.B., Fernando, P., Wright, D. and Redman, S., 2018. Housing
conditions of urban households with Aboriginal children in NSW Australia: tenure type
matters. BMC public health, 18(1), p.70.
Martin, C., 2018. Housing reform and classical liberal governmentality before the social housing
era. In Remaking Cities—Proceedings of The 14th Australasian Urban History Planning
History Conference, Melbourne (pp. 303-313).
Wong, P., Higgins, D. and Soemarsono, C., 2018. Australian Housing Market and the Indonesian
Foreign
Real Estate Investment. In APHRN 2018: Smart and Sustainable Housing Futures (pp. 87-97).
University of Hong Kong.
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