High Court. Can it be said that the type of invalidity effected by s 109 of the Constitution does not render the State law void or beyond State legislative power, but instead renders the State law "inoperative"? If so, does it follow that, "on and from the Commonwealth law ceasing to have effect, the State law resumes its full force and effect"?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Can questions of the validity of a law be decided by agreement of the parties?
Question 2: Is section 109 of the Constitution "only engaged by a law within Commonwealth legislative power and an otherwise valid law of the State"?
Question 3: Can it be said that the type of invalidity effected by s 109 of the Constitution does not render the State law void or beyond State legislative power, but instead renders the State law "inoperative"?
Question 4: If the answer to Question 3 is 'yes', does it follow that, "on and from the Commonwealth law ceasing to have effect, the State law resumes its full force and effect"?
Question 5: Are the following different aspects of the single concept of inconsistency: "considering whether a State law would alter, impair or detract from the operation of the Commonwealth law", known as "direct inconsistency"; and considering "whether a law of the Commonwealth is to be read as expressing an intention to say 'completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed'", known as "indirect inconsistency, described as "'cover[ing] the field'" which it occupies or "'cover[ing] the subject matter'"?
Question 6: Does an inconsistency "exist between a Commonwealth law which operates expressly to exclude the operation of a specified category of State law and a State law within the category specified"?
Question 7: Is a Commonwealth law conferring an immunity and State laws infringing it an exemplar of the application of s 109?
Question 8: Can it be said that, "as a general proposition, the power to make laws includes the power to unmake or repeal them, such that a law that repeals (or limits the operation of) a valid law is usually supported by the head of power that supported the law so repealed (or limited) unless there is some constitutional limitation on the power to effect the repeal (or limitation)"?
Question 9: Can a Commonwealth law of its own force deny operational validity to a State law?
Question 10: If the Commonwealth can remove an inconsistency by repealing the law, can it do so retrospectively, with the result that Metwally should be overruled?
The HCA answered those questions as follows: