Butler v Attorney-General (Victoria)

106 CLR 268

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(Judgment by: Fullagar J)

Between: Butler
And: Attorney-General (Victoria)

Court:

Judges:
Fullagar JKitto J
Taylor J
Menzies J
Windeyer J

Subject References:
CONSTITUTIONAL
Inconsistency
Revival of State Act upon expiration of Commonwealth Act

Legislative References:
Constitution (Cth) - s 109

Hearing date: 28 February 1961
Judgment date: 2 June 1961

Melbourne

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Judgment by:
Fullagar J

This is a demurrer to the statement of claim in an action brought in this Court. The plaintiff is a member of the Public Service of the State of Victoria, and a "discharged serviceman" within the meaning of the Discharged Servicemen's Preference Act 1943 (Vict.), which I will call "the Preference Act". He claims that he was in May 1959, and still is, entitled to certain rights given by that Act to discharged servicemen. The demurrer raises two questions of law, but before stating these it is convenient to refer briefly to the relevant statutes and decisions.

The Preference Act came into force by proclamation on 21st March 1944. Section 4 provided that (inter alia) ss. 7, 9 and 10 should apply in respect of employment by the Crown in right of the State of Victoria. Section 7 required an employer to reinstate in his employment a discharged serviceman who applied for reinstatement. Sections 9 and 10 required an employer in making appointments and promotions to give preference to a "suitable and competent" discharged serviceman who applied for appointment or promotion. On 27th August 1945 the Re-establishment and Employment Act 1945 (Cth) came into force by proclamation. Part II of this Act, which was expressed to apply to the Crown in right of a State as well as to private employers, dealt with the same subject-matter as the Victorian Preference Act. In Wenn v Attorney-General (Vict.) ^[F1] it was held that ss. 4, 7, 9 and 10 of the Victorian Act were inconsistent, within the meaning of s. 109 of the Constitution, with the provisions of Pt II of the Commonwealth Act, and were therefore invalid. Wenn's Case ^[F2] was decided on 20th August 1948. The Commonwealth Act had, of course, been enacted as an exercise of the defence power, and on 16th April 1959 this Court decided in The Illawarra District County Council v Wickham ^[F3] that Pt II thereof could no longer be supported as an exercise of that power. It was never suggested that it could be supported under any other constitutional power. It follows from Wickham's Case ^[F4] that, at the time which is material in the present case, Pt II of the Commonwealth Act had ceased to be in force as a law of the Commonwealth.

It is on the facts so far stated that the first question arises. That question is whether ss. 4, 7, 9 and 10 of the Victorian Preference Act acquired the force of law when the Commonwealth Act ceased to have the force of law. It is quite clear, in my opinion, that this question must be answered in the affirmative. The Victorian Act was not unconstitutional. It was a valid law of the State, and it was fully operative as a law of the State from 21st March 1944 to 27th August 1945. On the latter date it ceased to operate as such a law. But that was not because of any inherent vice. It was merely because the "field" was temporarily occupied by valid Commonwealth legislation. It remained on the statute book and was never repealed by the State Parliament. When the Commonwealth legislation expired, the only obstacle to its operation as a valid law of the State was removed, and it resumed the full force and effect which it had had before 27th August 1945. As Latham C.J. pointed out in Carter v Egg and Egg Pulp Marketing Board (Vict.), ^[F5] the word "invalid" in s. 109 cannot mean that a State law affected by s. 109 becomes ultra vires in whole or in part. The word must be regarded as meaning "inoperative". His Honour added:

"If the Commonwealth law were repealed, the State law would again become operative". ^[F6]

The same view is taken in the United States: see Willoughby on The Constitution of the United States 2nd ed. (1929) vol. II, pp. 1099, 1100, and Tua v Carriere. ^[F7]

If the first of the two questions raised had been the only question, the demurrer must have been overruled. It would, however, be sufficient for the defendant if he could succeed on the second question raised. That question arises not by reason of any Commonwealth legislation but because of the enactment of another State Act, which has not yet been mentioned. This is the Public Service Act 1946 (Vict.), the substantive provisions of which came into force by proclamation on 29th October 1946, i.e. after the passing of the Re-establishment and Employment Act (Cth) but before the decision in Wenn's Case. ^[F8] It was entitled "An Act to consolidate and amend the Law relating to the Public Service." Section 32 (5) provided:

"In the appointment of a person to any office consideration shall 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. In this sub-section `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."

(I am prepared to assume that "appointment" in this provision includes "promotion", though I think the point is doubtful).

The argument in support of the demurrer is that s. 32 (5) is "in conflict" with ss. 9 and 10 of the Preference Act and that those provisions ceased, on the passing of the new Public Service Act, to apply in relation to the Public Service of Victoria.

This argument can no doubt be expressed in various ways, but it can, as it seems to me, have no meaning except as an assertion that the Act of 1946, by s. 32 (5), effected an implied repeal of s. 4 of the Preference Act, which provides that the Act shall apply to the Crown in right of the State of Victoria. I would make two preliminary observations upon it. In the first place, it cannot, I think, be right to use as a major premise an assumption that the Victorian legislature knew that its Preference Act was inconsistent with Commonwealth legislation and infer from this that it deliberately in 1946 excluded the Victorian Public Service from it. The two Acts must be construed together, I would think, without any a priori assumption, but, if any assumption is to be made, it should be that the legislature believed its own Act to be valid: Wenn's Case ^[F9] was not decided until some two years later. In the second place, to say that the legislature intended to repeal the Preference Act so far as it concerned the Public Service of the State, while leaving it standing so far as it concerned employers generally, is to attribute a very strange intention to it. It is surely extremely unlikely that, within a year or so of the ending of the war, it should be decided that the Crown, as an employer, should be exempted from a statute passed for the benefit of servicemen, while the general body of employers remained subject to it.

The books contain, of course, plenty of examples of an implied repeal - total or partial - of an earlier statute by a later statute of the same legislature. But it is a comparatively rare phenomenon, and it has been said again and again that such a repeal will not be held to have been effected unless actual contrariety is clearly apparent. I would say that it is a very rare thing for one statute in affirmative terms to be found to be impliedly repealed by another which is also in affirmative terms. The classical statement on the subject is, I think, to be found in the opinion of Lord Blackburn in Garnett v Bradley. ^[F10] After calling attention to the generally unsatisfactory nature of the authorities, his Lordship said:

"I shall not attempt to recite all the contrarieties which make one statute inconsistent with another; the contraria which make the second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely, that when the new enactment is couched in general affirmative language and the previous law, whether a law of custom or not, can well stand with it, for the language used is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together. There the general affirmatives words used in the new law would not of themselves repeal the old. But when the new affirmative words are, as was said in Stradling v Morgan, ^[F11] such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together; the second repeals the first". ^[F12]

It should be pointed out in this connection that the position where contrariety is suggested between an earlier and a later State statute is not quite the same as the position where inconsistency, within the meaning of s. 109, is suggested between a Commonwealth Act and a State Act. The Commonwealth Parliament is, within its sphere of power, a paramount legislature, and there can be no presumption either that it did, or that it did not, intend by its own Act to supersede or preclude from operation a State Act. But, where the comparison to be made is between two State Acts, there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant.

It is the latter maxim that is, in my opinion, plainly appropriate here. Bearing in mind the considerations which I have mentioned, I can see no difficulty in reading s. 32 (5) of the Public Service Act 1946 subject to the provisions of the Preference Act. If it had commenced with the words "Subject to the provisions of the Discharged Servicemen's Preference Act 1943", it would never have occurred to anybody to think there was any inconsistency or contrariety between the introductory words and the substantive enactment. A very close recent parallel is to be found in Williams v Hursey. ^[F13] In that case a "port order" made in 1948 under s. 14 of the Stevedoring Industry Act 1947 (Cth) provided that in the port of Hobart all union labour was to be utilized before recourse was had to non-union labour. The Stevedoring Industry Act 1956, by s. 17 (1) (f), required the Stevedoring Industry Authority

"to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers."

It was argued that this provision was inconsistent with the port order, and by implication repealed it. This argument was rejected by four Justices of this Court, the fifth expressing no opinion on the point. In a judgment in which the Chief Justice and Kitto J. concurred I said:

"There seems to me to be no real difficulty in regarding s. 17 (1) (f) of that Act as qualified by that order. In other words, there is no difficulty in reading s. 17 (1) (f) as empowering the Authority to make the required arrangements subject to a proviso that non-unionists shall not be employed as long as unionists are available for employment". ^[F14]

Menzies J. said:

"I find no such inconsistency. It seems to me that the Authority might carry out its functions under s. 17 (1) (f) and ensure a fair distribution of work in stevedoring operations amongst registered waterside workers subject to the existence of a provision giving preference to members of the federation. There was, therefore, in my judgment no repeal of O. 38 of 1948 when the Stevedoring Industry Act 1956 came into operation". ^[F15]

I have so far refrained from mentioning s. 3 (1) of the Preference Act, because I should have been of the same opinion if that sub-section had not been in the Act. But, if I thought the question otherwise susceptible of doubt, I would regard that sub-section as conclusive. It provides that "the provisions of this Act shall take effect notwithstanding anything to the contrary in any Act or enactment or in any regulation by-law or determination thereunder or in any contract or agreement." I would, of course, agree that theoretically a later Act might be found inconsistent with the Preference Act notwithstanding the presence of that provision therein. But I would not think that such inconsistency could be found unless the later Act itself contained a provision in similar words or otherwise clearly indicated a specific intention to deny the effect of s. 3 (1). Practically speaking, I think that s. 3 (1) precludes the possibility of a merely implied repeal. When the Public Service Act 1946 came into force, the position was simply that there were on the statute book two Acts which had to be construed together. To any argument that the process of construction should lead to the conclusion that the later Act abrogated the earlier, it must surely be a decisive answer that the earlier Act contains, and the later Act does not contain, an express provision that it is to have effect notwithstanding anything in any other Act. It might, of course, be suggested that s. 3 (1) referred only to Acts, etc., in existence at the commencement of the Preference Act. But I could not accept such a view. It cannot be supposed that a contract "to the contrary" of the Act, made after the commencement of the Act, would be valid.

In my opinion both grounds of the demurrer fail, and the demurrer should be overruled.