''Clyde Engineering Co Ltd v Cowburn'',
[.] is a
High Court of Australia case about inconsistency between a Commonwealth and a
State
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
law, which is dealt with in s 109 of the
Australian Constitution. It contains classic statements of the denial of rights test and the covering the field test for inconsistency.
Background
The ''Forty-Four Hours Week Act'' 1925 (NSW) provided that workers under a Commonwealth award which stipulated a
working week longer than 44 hours should be paid their full wages if they had worked for 44 hours. Cowburn was an employee of
Clyde Engineering
Clyde Engineering was an Australian manufacturer of locomotives, rolling stock, and other industrial products.
It was founded in September 1898 by a syndicate of Sydney businessmen buying the Granville factory of timber merchants Huds ...
, and worked a 44-hour week. However, the Commonwealth award stated that a worker who performed less than 48 hours of work should have pay deducted for non-attendance.
The decision
Knox CJ and Gavan Duffy J noted that the impossibility of obedience test (see ''
R v Licensing Court of Brisbane; Ex parte Daniell
''R v Licensing Court of Brisbane; Ex parte Daniell''. is a High Court of Australia case about inconsistency between Commonwealth and State legislation, which is dealt with by s 109 of the Australian Constitution. It is the leading example of w ...
'')
[.] may not be appropriate in all circumstances. They formulated a new test: where one statute confers a right, and the other takes away the right, even if the right may be waived or abandoned, there is an inconsistency, whereupon the State law would then be invalid to the extent of the inconsistency. Isaacs and Rich JJ agreed with Knox CJ and Gavan Duffy J regarding the denial of rights test. This test was re-stated by
Dixon J in ''
Victoria v Commonwealth'': "When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid."
[.]
Isaacs and Starke JJ also concluded an inconsistency based on the covering the field test. An inconsistency may arise where the Commonwealth law, expressly or impliedly, intends to cover the field completely, and supersede or exclude any other laws in that area. If the State law then enters that field, or the part of the field covered by the Commonwealth law, then the State law will be inconsistent, even though it may be possible to obey both laws simultaneously.
See also
*
Australian constitutional law
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed.
Background
Constitution ...
*
Section 109 of the Australian Constitution
Section 109 of the Constitution of Australia is the part of the Constitution of Australia that deals with the legislative inconsistency between federal and state laws, and declares that valid federal laws override ("shall prevail") inconsistent s ...
References
{{reflist
*
Winterton, G. et al. ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney.
High Court of Australia cases
1926 in Australian law
1926 in case law
Australian constitutional law
Inconsistency in the Australian Constitution cases
Working time
Australian labour case law