Butler v Attorney-General (Victoria)
106 CLR 268(Judgment by: Taylor J)
Between: Butler
And: Attorney-General (Victoria)
Judges:
Fullagar J
Kitto J
Taylor JMenzies J
Windeyer J
Subject References:
CONSTITUTIONAL
Inconsistency
Revival of State Act upon expiration of Commonwealth Act
Legislative References:
Constitution (Cth) - s 109
Judgment date: 2 June 1961
Melbourne
Judgment by:
Taylor J
The plaintiff is and at all material times was a member of the Public Service of the State of Victoria. He is also a "discharged serviceman" within the meaning of the Discharged Servicemen's Preference Act 1943 according to the terms of which employers are bound to give a measure of preference both in employment and promotion to persons who fall within that category. His complaint in this suit is that the Public Service Board refused to observe the provisions of s. 10 of the Act when it failed to appoint him to a higher vacant position. He was an applicant for promotion to that position but another officer of the Public Service who was not a "discharged serviceman" was promoted to the position on 4th May 1959. It appears that in making this appointment the Board acted upon the view that the provisions of the Discharged Servicemen's Preference Act were not in force but this is disputed by the plaintiff. Accordingly he brings this suit for declarations that the Act is and was at all material times in force in Victoria and that the Public Service Board is under a duty to give effect to its provisions in making any promotion within the Public Service of that State.
Upon the hearing of the demurrer raised by the defendant it was sought to support the view taken by the Board upon the following grounds:(1) that upon the enactment in June 1945 of the Re-establishment and Employment Act 1945 of the Commonwealth of Australia the Discharged Servicemen's Preference Act 1943 became "invalid" and has remained so notwithstanding the decision of this Court in The Illawarra District County Council v Wickham; [F22] and (2) that, even if the provisions of the latter Act would otherwise have resumed their normal operation after the Federal Act ceased to have any validity, the provisions of the Public Service Act 1946 with respect to the promotion of officers in the Public Service were so inconsistent with the provisions of s. 10 of the Act of 1943 that those provisions of the Public Service Act must be taken to have prevailed when the Federal Act ceased to operate.
The first of these propositions depends exclusively upon the meaning and effect of the provisions of s. 109 of the Constitution for the decision in Wenn v Attorney-General (Vict.) [F23] clearly established that the Federal Act was in full force and effect in 1948 and, further, that its operation was such as to render a number of sections of the Discharged Servicemen's Preference Act completely inoperative. In terms, the declaration then made was "that ss. 4, 7, 9, and 10 of the Discharged Servicemen's Preference Act 1943 of Victoria are invalid". [F24] "Invalid" is, of course, the word used in s. 109 and it is upon this circumstance that the defendant seizes to support his first proposition. If, it is said, the Act became invalid then it thereafter had, at all times, remained so. That is to say that "invalid" simply means void and not merely inoperative. But this argument does scant justice to the language of s. 109 as a whole and to the part which it is so clearly designed to play in the constitutional framework. Obviously the interaction of Federal and State laws was a matter of prime importance in the framing of the constitutional instrument. And, naturally enough, covering cl. 5 provided that all laws made by the Parliament of the Commonwealth under the Constitution should be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State (covering cl. 5). Then in Chap. V we find express provisions purporting to preserve the Constitution of each State and the legislative powers of the State Parliaments except as to powers exclusively vested in the Parliament of the Commonwealth, and other provisions saving the existing laws of the States subject to any later provision made by the Parliament of the Commonwealth. Then follows s. 109 which declares that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. In construing these words it should be noticed that the condition for the operation of the section is that a law of the State shall be found to be inconsistent with a law of the Commonwealth. When this appears the Federal law is to prevail and the latter is to the extent of the inconsistency to be invalid. The section is, of course, not dealing merely with instruments as such; it is dealing with instruments having the force of law and which are intended during the period of their operation to create rights and duties and to impose obligations according to their tenor. That being so it seems to me that the words "to the extent of the inconsistency" must be taken to have a temporal as well as a substantive connotation. Indeed the scheme of the section is consistent only with this view. The Federal Act can "prevail" only whilst it remains in force and invalidity of the State Act is produced only as the counterpart of the "supremacy" of the Federal Act. This view is supported by the observations of Higgins J. in R. v Brisbane Licensing Court; Ex parte Daniell; [F25] and Latham C.J. in Carter v Egg and Egg Pulp Marketing Board (Vict.) [F26] and as far as I can see the contrary view has never been seriously raised. Certainly it has never received any judicial support and in my view the defendant's first contention must be rejected.
In answer to the second contention it was urged upon us by the plaintiff that the Discharged Servicemen's Preference Act made provision of a very special nature for members of a particular class and that s. 10 should not be held to be affected by the general provisions of the Public Service Act with respect to promotion within the Public Service. In this connection our attention was drawn to the emphatic declaration which s. 3 of the earlier Act contains. These matters must, of course, be borne in mind. But if in the end it is seen that the two sets of provisions with respect to promotion cannot stand together the considerations adverted to by the plaintiff can be of little help in resolving the critical question.
Upon examination it will be seen that the relevant provisions of s. 10 are quite explicit. That section provides that where any employer invites applications for any position in his employment only from persons in his employment, he shall in making any promotion to that position give preference to a suitable and competent discharged serviceman in his employment who applies for that promotion within the time and in the manner specified in the invitation. The expression "suitable and competent", in respect of any applicant for employment in any position, means-(a) of good character; (b) of the required sex and a suitable age; (c) having the necessary professional or technical qualifications; (d) having had reasonable experience in the same or a similar kind of employment and possessing a satisfactory degree of competence; and (e) (where the nature of the employment is such as necessarily to require special characteristics) having those characteristics. The result is that an employer will commit a breach of s. 10 (1) if among a number of competing applicants for promotion to a vacant position there is a suitable and competent discharged serviceman and he fails to appoint him to the higher position. Considerations of relative efficiency are beside the point as also are considerations of relative seniority in the service. But these are the very considerations upon which s. 32 of the Public Service Act fastens. It is the duty of the permanent head of the department concerned to recommend for appointment the applicant whom he considers most suitable (sub-s. (4)). The appointment, itself, is made by the Public Service Board (sub-s. (1)) and in making the appointment of any person to any office consideration is to be given first to relative efficiency and, in the event of equality of efficiency of two or more officers in the Public Service, then to relative seniority (sub-s. (5)). "Efficiency" means special qualifications and aptitude for the discharge of the duties of the office to be filled together with merit, diligence and good conduct. Quite clearly, the competing provisions are directly in conflict and it is impossible for both to have full operation in relation to promotions within the service. Apart from any other consideration the ordinary rules of statutory construction would oblige us to hold that the provisions of s. 32 of the Public Service Act, to which we have referred, prevail over the provisions of s. 10 of the Discharged Servicemen's Preference Act. But the further point is made that the former Act was nothing but a consolidation of earlier legislation and should not be held to constrain the operation of s. 10 of the later Act. The provisions of s. 32, however, are not merely the result of consolidation. As Latham C.J. said in Wenn v Attorney-General (Vict.): [F27]
"This provision" (i.e. s. 32) "altered the law as it previously existed in the Public Service Act 1928, s. 56. That section provided that in the promotion of officers in the clerical division regard should be had to the merit, good and diligent conduct, length of service and relative seniority of the officer and the nature of the work performed by him. Section 32 (5) placed efficiency first and gave a senior officer a right to promotion by reason of seniority only in the event of equality of efficiency". [F28]
And, as his Honour observed, this provision operated notwithstanding the existence of the Re-establishment and Employment Act 1945 since that Act made no substantive provision with respect to competing applicants for promotion as distinct from competing applicants for employment. It would, it seems to me, be a strange result if s. 32, having regulated promotion within the Public Service as long as the Re-establishment and Employment Act 1945 remained in force, should, upon that Act ceasing to be operative, be overridden by the provisions of an earlier Act of the Victorian Parliament with which s. 32 was in direct conflict. For the reasons which I have given I am of the opinion that this result did not follow and that being so, the plaintiff's claim for a declaration must fail.
The conclusion which I have reached is based solely upon a comparison of the competing legislative provisions for it is in "the words of Parliament itself, formally enacted in the statute", that the intention of the legislature is expressed (per Latham C.J. in South Australia v The Commonwealth [F29] ). Or as Starke J. said in the same case "The intention, object, or purpose of a legislative body can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable and necessary intendment". [F30] But even if it were permissible to impute an intention to the legislature upon extraneous grounds any enquiry for this purpose would be profitless for if the competing provisions could stand together there would, of course, be no problem whilst, on the other hand, if, as I think, they cannot then speculation as to the intention of the legislature-whatever that expression may mean independently of intention expressed in the words of a statute-can be of no assistance.
Before parting with the case it is desirable to point out that the plaintiff did not attempt in these proceedings to challenge the validity of the appointment which was, in fact, made. Indeed it was virtually admitted that if the appointment was in breach of the Act it was not open to him to impeach it in legal proceedings. In the case of an employer, other than the Crown, the appropriate course in the event of a breach of s. 10 would be the institution of summary proceedings pursuant to s. 13 and upon conviction for the offence alleged it would be competent for the magistrate to make an order declaring the position in question vacant (s. 16). But in the case of the Crown the appropriate course is prescribed by s. 4 pursuant to which cancellation of any appointment or promotion is in the discretion of the Governor in Council. It will thus be seen that the making of the declaration sought by the plaintiff would not directly affect his rights or those of the Crown and it would not be a declaration which this Court could enforce. In those circumstances I simply desire to say that I have entertained grave doubts whether this was an appropriate case for the making of a declaration pursuant to O. 26, r. 19.