1. Constitutional Law
Topic 10 Inconsistency
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2. Inconsistency
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Clyde Engineering Co Ltd vCowburn (1926)
Ex parte McLean (1930)
Telstra Corporation Ltd v Worthing (1997)
Commercial Radio Coffs Harbour v Fuller (1986)
Ansett Transport Industries (Operations) Pty Ltd vWardley (1980)
Australian Mutual Provident Society vGoulden (1986)
APLA Ltd v Legal Services Commissioner (NSW) (2005)
Botany Municipal Council v Federal Airports Corporation (1992)
Bayside City Council v Telstra Corporation Ltd (2004)
New South Wales v Commonwealth (“Workchoices Case”) (2006)
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3. Inconsistency
• Section 109 of the Commonwealth
Constitution provides that where a state law is
inconsistent with a Commonwealth law, then
the state law is invalid, to the extent of the
inconsistency: (Carter v Egg and Egg Pulp
Marketing Board (Vic) (1942) 66 CLR 557,
573).
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4. Clyde Engineering Co Ltd
vCowburn (1926)
• John William Cowburn sued his employer
Clyde Engineering Co Ltd for 9 shillings and 4
pence, being the difference between wages
for one week under a Commonwealth award
and his alleged entitlement under a Forty-four
Hours Week Act 1925 (NSW).
• Clyde argued that the Cth act applied to the
exclusion of the NSW act.
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5. Clyde Engineering Co Ltd
vCowburn (1926)
• Held, in separate concurring judgments, that
the effect of the Commonwealth Conciliation
and Arbitration Act 1904-1921 precluded the
state parliament from altering the terms of
the award or confer or impose on the parties
to it rights or obligations which are
inconsistent with such terms contained in the
Commonwealth Award.
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6. Clyde Engineering Co Ltd
vCowburn (1926)
• Held, further, by Knox C.J., Isaacs, Gavan Duffy,
Rich and Starke JJ (Higgins and Powers JJ
dissenting), that the Forty-four Hours Week
Act 1925 (NSW) was inconsistent with the
Commonwealth Conciliation and Arbitration
Act and also with awards made under it and
therefore the state act was invalid to the
extent of the inconsistency.
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7. Carter v Egg and Egg Pulp
• The Egg and Egg Pulp Marketing Board for the
State of Victoria, challenged the plaintiff’s
allegations of invalidity of “Egg Legislation”
and delivery of a large quantities of eggs
delivered to the defendant by the plaintiffs.
• Plaintiffs’ argument was that the laws were
invalid on the basis that they were
inconsistent with the National Security Act
1939–40 (Cth) and its delegated regulations.
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8. Carter v Egg and Egg Pulp
• Latham CJ: His honour discussed an example of a
direct inconsistency is to be found in R v The
Licensing court of Brisbane and Others, Ex parte
Daniell.
• A State law for voting on liquor licensing was set
down on the same day as a Cth Senate election.
• A Commonwealth law provided that no state
voting could occur on the same day.
• There was a direct conflict between Cth and State
laws, and the State law was therefore
inoperative.
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9. Carter v Egg and Egg Pulp
• Latham CJ: But when there is no inconsistency
in the actual terms of the competing statutes,
the Commonwealth Parliament may have
shown an intention to make its legislation
upon a particular subject exhaustive, so as to
exclude any State legislation upon that
subject: Clyde Engineering Co Ltd vCowburn,
[1926] ALR 214 .
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10. Ex parte McLean (1930)
• Dixon J noted that inconsistency did not lie in
the mere coexistence of two laws susceptible
to simultaneous obedience. It depends upon
the intention of the legislature to completely,
exhaustively, or exclusively govern the
particular matter in question.
• This intention would invalidate a state law.
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11. Telstra Corporation Ltd v
Worthing (1997)
• The respondent claimed compensation under
the Workers' Compensation Act 1987(NSW)
for injuries sustained in 1986 and 1988 whilst
employed by Telstra.
• The appellant's application to the
Compensation Court of New South Wales for
dismissal of the respondent's claim for want of
jurisdiction was dismissed.
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12. Telstra Corporation Ltd v
Worthing (1997)
• Court held that there were two propositions:
• Firstly, that a state law will be invalid if it would
alter, impair or detract from the Commonwealth
Law; and
• Secondly, if the Cth law was intended to be a
complete statement of the law governing a
particular matter, a state law applying to the
same subject matter would be invalid if it.
• This became known as ‘cover the field’
inconsistency.
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13. Commercial Radio Coffs Harbour v
Fuller (1986)
• The applicant (“CRCH”) radio station was required
under its license granted by the Cth to build a
transmission tower.
• CRCH then obtained development approvals from
the local council.
• A group of citizens claimed a lack of
environmental consideration under the NSW
legislation.
• CRCH then sought a declaration from the Court
that the state law was invalid as against the Cth
Broadcasting laws.
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14. Commercial Radio Coffs Harbour v
Fuller (1986)
• It was held that there was no inconsistency
between federal and State laws as contended.
TheCth law did not purport to exclusively or
exhaustively ‘cover the field’ but rather left room
for the operation of federal and State legislation.
• The granting of a licence under theCth Act did not
confer an immunity from other federal or State
laws, nor did the possibility of a conflict arising
from the combined operation of two laws create
inconsistency under s 109.
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15. Commercial Radio Coffs Harbour v
Fuller (1986)
• Gibbs CJ and Brennan J: The Cth law did not
confer a positive authority (or requirement)
on the CRCH, and therefore the company was
required to comply with the state planning
laws.
• Further, no offence would be committed for
non-compliance if a person could not comply
with the Cth license requirements by reason
of the state laws.
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16. Ansett Transport Industries (Operations)
Pty Ltd vWardley (1980)
• The Equal Opportunity Act 1977(Vic,) s 18
provided protections against discrimination on
the basis of sex or marital status of employees.
• The Airline Pilots Agreement 1978 was certified
pursuant to the Conciliation and Arbitration Act
1904 (Cth) s28.
• Clause 6 of the agreement provided for
termination and dismissal procedures of staff
under certain conditions.
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17. Ansett Transport Industries (Operations)
Pty Ltd vWardley (1980)
• Held that there was no inconsistency under
s109between cl 6 of the Agreement and the Equal
Opportunity Act, s18.
• Stephen, Murphy and Wilson JJ, stated that cl6
concerning the dismissal of employees should be read
against the background of the general law.
• Mason J stated that cl6 dealt with matters of procedure
relating to dismissal and not with substantive rights.
• Stephen Jbecause discrimination on the ground of sex
was not within the purview of the Agreement.
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18. Australian Mutual Provident Society
vGoulden (1986)
• Section 78 of the Life Insurance Act 1945 (Cth)
purported an intention to protect the interests of
policy holders by allowing registered life
insurance companies to classify risks and fix.
• It could alter, impair or detract from the Act if a
registered life insurance company were precluded
by State legislation from setting different
premiums for risk management in deciding
whether to accept a proposal or what terms
should apply to insurance cover that was granted.
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19. Australian Mutual Provident Society
vGoulden (1986)
• Section 49K(1) of the Anti-Discrimination Act
1977 (NSW) made it unlawful for any refusal
to insure a person or any adverse insurance
terms on the ground of "physical impairment"
of the person concerned.
• The contention was that the NSW act could
not have effect to stop the Cth law operating.
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20. Australian Mutual Provident Society
vGoulden (1986)
• Held that the NSW Act would have had the
effect of negating essential elements of
the Life Insurance Act.
• This would have created inconsistency with
the Cth act in its application to the life
insurance business of registered life insurance
companies, and therefore invalid under s109
of the Constitution.
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21. APLA Ltd v Legal Services
Commissioner (NSW) (2005)
• The plaintiffs challenged the constitutional validity of
the Legal Profession Regulation 2002 (NSW) Part 14
which purported to impose sanctions on lawyers
advertising their legal services to possible future clients
in relation to potential personal injury claims.
• The plaintiffs argued that the existence of the State
legislation impermissibly impinged on rights and
remedies arising under several different pieces of
federal legislation (including the Trade Practices Act
1974(Cth) and was invalid to the extent of any
inconsistency under s 109.
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22. APLA Ltd v Legal Services
Commissioner (NSW) (2005)
• Appeal dismissed by majority, that the LPR was
not inconsistent with rights under federal laws.
• Gummow J; Hayne J agreeing: For a State law to
be inconsistent under s 109, it must also
"directly" impair the exercise of the relevant
federal right, "undermining" and "negating" the
relevant federal rights.
• Gummow J: The extent of the inconsistency is a
question of fact and degree.
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23. APLA Ltd v Legal Services
Commissioner (NSW) (2005)
• Gleeson CJ and Heydon J: None of the impugned
federal legislation relies on the unrestricted promotion
of legal services.
• The rights, powers, and jurisdictions created by the
Trade Practices Laws have full legal effect and
operation regardless of whetherthe States or
Territories permit or restrict advertising by lawyers.
• Kirby J dissented finding that the Legal Profession
Regulation impeded the formation of relationships
between practitioners and potential clients.
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24. Summary of ‘Covering the Field’
• First issue is to establish that the subject
matter is covered by the Cth law.
• Secondly, establish that the Cth law was
intended (expressly or impliedly) to be
exhaustive in the ‘field’ it applies to.
• Third issue is to determine if the state law
regulates the same subject matter.
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