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Wednesday, 21 November 1973
Page: 1975


Senator MURPHY (New South WalesAttorneyGeneral and Minister for Customs and Excise) - in reply- In answer to the Deputy Leader of the Opposition (Senator Greenwood) I say that I will give consideration to what he said. Of course States may say anything they wish publicly. Some views may be communicated confidentially but it would be better that I gave consideration to the question that he has raised. As to the other matter about the legislation being binding on the States -


Senator Wright - State parliaments.


Senator MURPHY -Well, I think that is a way of expressing what we all know is the position: That by reason of the provisions of section 109, of our Constitution any valid law passed by this Parliament operates to cut across any laws of the State Parliament. If any such law is inconsistent then the Constitution operates to cut it down. It can be expressed in many ways. In a sense it can be said that all laws of this Parliament are binding on all the people of Australia. I think the position is expressed rather neatly in the covering clauses of the Constitution. If I remember correctly, the laws made by this Parliament, are binding on the courts, the judges and the people of every State and of course one would say, in that sense, on the parliaments. It can be expressed in different ways. Section 5 of the covering clauses of the Constitution states:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every pan of the Commonwealth, notwithstanding anything in the laws of any State. . . .

What is being said is not in any way novel. However one expresses it it may sound a little novel, but there is no doubt that any law properly made by this Parliament binds all the people, all the courts and judges and in that sense all the parliaments of the States. I think there is nothing novel at all in that approach to the matter. I think it is just a matter of spelling out that this is something which is intended to cut across any contrary law of a State and it is intended to be, in a sense, a barrier which means that the State parliaments could not legislate validly if their legislation were inconsistent with Commonwealth law. I trust that clarifies the matter and I ask the Senate to agree to the motion.

Question resolved in the affirmative.







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