1

Constitutional Law

Topic 10 Inconsistency

2

Inconsistency• Clyde Engineering Co Ltd v Cowburn (1926)• Ex parte McLean (1930)• Telstra Corporation Ltd v Worthing (1997)• Commercial Radio Coffs Harbour v Fuller (1986)• Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980)• Australian Mutual Provident Society v Goulden (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)

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).

4

Clyde Engineering Co Ltd v Cowburn (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.

5

Clyde Engineering Co Ltd v Cowburn (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.

6

Clyde Engineering Co Ltd v Cowburn (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.

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.

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.

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 v Cowburn, [1926] ALR 214 .

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.

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.

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.

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.

14

Commercial Radio Coffs Harbour v Fuller (1986)

• It was held that there was no inconsistency between federal and State laws as contended. The Cth 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 the Cth 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.

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.

16

Ansett Transport Industries (Operations) Pty Ltd v Wardley (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) s 28.

• Clause 6 of the agreement provided for termination and dismissal procedures of staff under certain conditions.

17

Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980)

• Held that there was no inconsistency under s 109 between cl 6 of the Agreement and the Equal Opportunity Act, s 18.

• Stephen, Murphy and Wilson JJ, stated that cl 6 concerning the dismissal of employees should be read against the background of the general law.

• Mason J stated that cl 6 dealt with matters of procedure relating to dismissal and not with substantive rights.

• Stephen J because discrimination on the ground of sex was not within the purview of the Agreement.

18

Australian Mutual Provident Society v Goulden (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.

19

Australian Mutual Provident Society v Goulden (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.

20

Australian Mutual Provident Society v Goulden (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 s 109 of the Constitution.

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.

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.

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 whether the 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.

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.