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Inconsistencies in Cth and State Laws

Summary of key High Court cases on inconsistencies between Commonwealth and State laws under s109 of the Australian Constitution, including major tests like conflict of duties, modification of rights, and covering the field.

Daniel Miller
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Cases1 - INCONSISTENCY BETWEEN CTH AND STATE LAWSINVALIDITYWen v Attorney GeneralIllawarra Council v WhickamButler vA-G of Vic(1961)INCONSISTENCYAustralian Boot Trade Employees Federation v Whybrow(1910)The Cth industrial award requiring employees in the boot trade to be paid a minimum wage of 1shilling, 1 1/2 pence per hour. There was a Victorian law requiring a minimum wage of 1 shilling perhour.HELD: it is possible to obey both laws - no inconsistencyR v Licensing Court of Brisbane; Ex Parte Daniell(1920)Federal law prohibited the holding of a vote of referendum of voters of a State on a day appointed forvoting for a federal election. Qld law required a State referendum to be held on the same day as aparticular federal election.HELD: Qld electoral officials could not obey both laws. There was a conflict of duties and therefore adirect inconsistency.Colvin v Bradley Bros Pty Ltd(1943)NSW law prohibited the employment of women on milling machines. Federal award explicitlypermitted the employment of women (unless a Board of Reference made a declaration to thecontrary, but no such declaration was relevantly made).HELD: There was an inconsistency between the State duty not to employ and the federal right (liberty)to employ - looks like a new test of modification of rights?Clyde Engineering Co Ltd v Cowbum(1926)A state law fixed ordinary working hours in the engineering industry at 44 hours, with overtimeentitlements for additional hours. A Cth industrial award fixed pay rates and overtime on the basis of a48-hour week, and gave employers the right to deduct pay from employees working less than the 48hours. Cowburn relied on the State act to work only a 44 hour week, and claimed full award wages.His employer, relying on the federal award, deducted 9s 4d from his wages.DISSENTING: (Higgins and Powers JJ) It is possible to obey both laws, by paying the full award wagefor 44 hours of work. - conflict of duties test.HELD: (Knox CJ and Gavan Duffy J) 'One statute is inconsistent with another when it takes away aright conferred by that other...' - modification of rights argument(Isaacs J): 'no doubt the employer could obey both, that is physically. ...But surely the vital questionwould be: was the second Act on its true construction intended to cover the whole ground and,therefore, to supersede the first?' - Covering the field argument- the tests operate concurrently.Intention of the legislators to cover the field.Ex parte McLean(1930)The NSW and Cth law:□stipulated the same 'rule of conduct' (employees must fulfil their employment contract), but□imposed 'different penal sanctions' for a breach.HELD: there was an inconsistency - not on the first two tests, but the third (covering the field) wasapplied.The Kakariki(1937) - 4th potential kind of inconsistency?? - operational1

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Civil Law

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