Clyde Engineering Co Ltd v Cowburn,[1] is a High Court of Australia case about inconsistency between a Commonwealth and a State 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.
(5:2) The New South Wales Act was held to be inconsistent with the Commonwealth award (per Knox CJ, Gavan Duffy, Isaacs, Rich & Starke JJ; Higgins & Powers JJ dissenting)
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, 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)[2] 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."[3]
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.
^Victoria v Commonwealth [1937] HCA 82, (1937) 58 CLR 618 (22 April 1920), High Court.
Winterton, G. et al. Australian federal constitutional law: commentary and materials, 1999. LBC Information Services, Sydney.
January 16, 2023
clyde, engineering, cowburn, this, article, includes, list, general, references, lacks, sufficient, corresponding, inline, citations, please, help, improve, this, article, introducing, more, precise, citations, february, 2018, learn, when, remove, this, templa. This article includes a list of general references but it lacks sufficient corresponding inline citations Please help to improve this article by introducing more precise citations February 2018 Learn how and when to remove this template message Clyde Engineering Co Ltd v Cowburn 1 is a High Court of Australia case about inconsistency between a Commonwealth and a State 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 Clyde Engineering Co Ltd v CowburnCourtHigh Court of AustraliaDecided19 April 1926Citation s 1926 HCA 6 1926 37 CLR 466Case historyPrior action s noneSubsequent action s noneCase opinions 5 2 The New South Wales Act was held to be inconsistent with the Commonwealth award per Knox CJ Gavan Duffy Isaacs Rich amp Starke JJ Higgins amp Powers JJ dissenting Court membershipJudge s sittingKnox CJ Isaacs Higgins Gavan Duffy Powers Rich and StarkeJJ Contents 1 Background 2 The decision 3 See also 4 ReferencesBackground EditThe 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 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 EditKnox CJ and Gavan Duffy J noted that the impossibility of obedience test see R v Licensing Court of Brisbane Ex parte Daniell 2 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 3 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 EditAustralian constitutional law Section 109 of the Australian ConstitutionReferences Edit Clyde Engineering Co Ltd v Cowburn 1926 HCA 6 1926 37 CLR 466 19 April 1926 High Court R v Licensing Court of Brisbane Ex parte Daniell 1920 HCA 24 1920 28 CLR 23 22 April 1920 High Court Victoria v Commonwealth 1937 HCA 82 1937 58 CLR 618 22 April 1920 High Court Winterton G et al Australian federal constitutional law commentary and materials 1999 LBC Information Services Sydney Retrieved from https en wikipedia org w index php title Clyde Engineering Co Ltd v Cowburn amp oldid 955814402, wikipedia, wiki, book, books, library,
