Clyde Engineering Co Ltd v Cowburn
Encyclopedia
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR
466 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.
longer than 44 hours should be paid their full wages if they had worked for 44 hours. Cowburn was an employee of Clyde Engineering Co Ltd, 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.
) 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 applied later in Victoria v Commonwealth (1937) 58 CLR 618: "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" (per Dixon J
).
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.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
466 is a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case about inconsistency between a Commonwealth and a State
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
law, which is dealt with in s 109 of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. It contains classic statements of the denial
Denial of request
Denial of request is the refusal of one party to grant the request of another. Some acts that can be considered denial may include the refusal of a person or a group of people representing a company, organization, or government agency to provide what a client or one seeking to be a client has...
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 weekWorking time
Working time is the period of time that an individual spends at paid occupational labor. Unpaid labors such as personal housework are not considered part of the 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 Co Ltd, 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 DaniellR v Licensing Court of Brisbane; Ex parte Daniell
R v Licensing Court of Brisbane; Ex parte Daniell 28 CLR 23 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...
) 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 applied later in Victoria v Commonwealth (1937) 58 CLR 618: "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" (per Dixon J
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
).
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.