#7318 - Inconsistency - Federal Constitutional Law

Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466

Facts:

State Law: Prescribed ordinary working hours of 44 hours a week (with overtime thereafter)

Federal Law: Fixed ordinary hours of duty at 48 hours.

John Cowburn relied on the State Act and worked 44 hours. His employer, relying on the CTH Act deducted an amount from his wages. It was possible to comply with both laws by adopting a 44 hour week but the rights of the employer under the federal award were denied by the State and the rights of the worker were denied by the Federal.

Isaacs J noted the problem if State law were to prevail – it would put the industries of Australia and the rights of employers/employees under a great state of uncertainty and confusion, constant inequality dictated by warring sectional policy and disrupt inter-State trade.

• His honour further noted that both laws could be obeyed – just like if a crime could be punished by 20 lashes by State and 25 by federal, both could be obeyed by giving 45 lashes

• His honour propounds a test that may not be useful in all cases but if satisfied would denote inconsistency:

“If…a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field”

• If this test is satisfied, inconsistency is established by the mere existence of the two sets of provisions

• Also, if the field is partly open – it becomes necessary to inquire further and contrast particular provisions (e.g. looking at if one provisions makes something lawful and the other unlawful etc.)

Ex parte McLean (1930) 43 CLR 472

Facts: The ‘cover the field test’ became authoritative in this case when Dixon J adopted it in this case.

Cth Act: - Conciliation and Arbitration Act - a person in breach of an award liable to a penalty not exceeding that which was fixed by the CCA or CCom

NSW Act: Masters and Servants Act – any person absenting themselves from a contract of service was liable to a penalty not exceeding 10

Firth, grazier, alleged that McLean, shearer, had neglected to fulfil his contract through incompetence. McLean argued that because both he and Firth were bound by a award made by the CTH Act, the State Act was invalid by s 109.

Held: Inconsistency since the same acts were made subject of slightly different penal sanctions

Dixon J:

• It is a given that if CTH and State legislate on the same subject, providing the rule of conduct, they make inconsistent laws even if the rule of conduct is identical which each prescribes

  • The reason is that by prescribing the rule the Fed statute shows an intention to cover the same subject matter and provide what the law is.

  • If the Federal law is intended to be supplementary then no inconsistency would arise

  • The inconsistency is not in the mere existence of the law (note divergence to Clyde) which are susceptible of both being obeyed – it depends on the intention of the paramount legislature to express its enactment exhaustively as what should be governing the conduct at which it is directed

Telstra Corporation v Worthing (1997) 197 CLR 61

Facts: Worthing made a claim for injuries sustained in 1986, 87, and 93 under State Law.

NSW Act : Workers Compensation Act 1926 was in force during the first two injuries, the WC Act 1987 for the third

Cth Act : Telecommunications Act provided that Telecom and its successors (Telstra) was not subject to obligation under a law of a State to which the CTH was not subject. The earlier law was such a law.

It was held that none of the three injuries were compensable under State legislation. The first two because of the inapplicability of the earlier Act and the 1993 one because it was coverable under a different Commonwealth regime – the Safety, Rehabilitation and Compensation Act which provided different compensation. Hence an inconsistency.

The Court noted tests 3 and tests 1 of inconsistency and said that the latter may apply even where the former does not. They noted that the Court of Appeal proceeded on the basis that if Test 1 applies, Test 3 would operate to override it if it did not. This was incorrect.

• From the NSWCA analysis it follows that to apply State law to the claim would qualify/negate the federal law to the consequence that the state law was invalid – hence Telstra should have succeeded.

• But the NSWCA proceeded on the basis that this was not an inevitable consequence and went on to look at whether the Federal law ‘covered the field’. They should not have proceeded further

Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47

Facts:

CTH Act: Broadcasting and Television Act 1942 – put as a condition upon granting of a license the erection of two antennae, 170m High.

State Act: EPAA

A license was given to a new radio station in Coffs Harbour. The ‘save our scenery’ committee took proceedings under the EPAA seeking impact assessments. A question of inconsistency between laws was removed to the HCA which held that no such inconsistency existed since the laws were directed at different purposes and hence occupied different fields – one was concerned with the technical requirements of broadcasting and the other the environment.

Furthermore the CTH Act required the construction of antennae and did not give authority to do so – hence there was no inconsistency under Test 2. Also the CTH Act imposed a duty by way of penalty for non-compliance [s 132(1)] - but this stopped short of requiring a licensee to disobey a state law. Hence no inconsistency under Test 1.

Gibbs CJ and Brennan J:

• Ordinarily a provision imposing a duty under penalty would be construed as conferring on the person whom the duty is imposed upon authority to do that thing

  • But an alternative construction is possible – if it is impossible to do the thing...