The Court also rejected the use of American precedent and said that they would apply the settled rules of construction giving primacy to the text of the Constitution, anchoring interpretation in its express words.
[5]In conjunction with the doctrine outlined in the Engineers Case, it has also significantly extended the reach of Federal legislative power in Australia.
Similar reasoning was later used in Telstra v Worthing, in discussing conflicting workers' compensation laws,[10] and in Bell Group v Western Australia, where a Western Australia Act that sought to accelerate the dissolution and administration of the Bell Group was held to conflict with the Commonwwealth's income tax laws.
[11] Chief Justice Knox and Justice Gavan Duffy agreed in Clyde Engineering Co Ltd v Cowburn[12] that a simple test of logical contradiction was "not sufficient or even appropriate in every case", and enunciated this 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.
The "cover the field" test must be implemented in three steps:[13] Questions 1 and 2 can be problematic as they frequently depend on a subjective assessment of the scope and operation of a Commonwealth law.
This test involves a more indirect form of inconsistency and makes s 109 a much more powerful instrument for ensuring the supremacy of Commonwealth law.
The "cover the field" test became fully authoritative when Justice Dixon adopted it in Ex parte McLean, stating: Close consideration of the reasons given by Isaacs, Rich and Starke JJ.
in Clyde Engineering Co Ltd v Cowburn shows that the view upon which they acted in that case and applied afterwards in H. V. McKay Pty.
For example, in Commercial Radio Coffs Harbour v Fuller,[18] the finding that there was no inconsistency between Federal and State laws depended on all three tests.
Airlines of NSW Pty Ltd v New South Wales (No 2) ,[19] where the permission for which Commonwealth law provided was neither absolute nor comprehensive.
[20]The Commonwealth can avoid covering a legislative "field" by passing an express provision declaring its intention not to do so.
The leading case is R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, where Mason J. noted: