Butler v Attorney-General (Victoria)

106 CLR 268

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(Decision by: Kitto J)

Between: Butler
And: Attorney-General (Victoria)

Court:

Judges: Fullagar J

Kitto JTaylor 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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Decision by:
Kitto J

The question raised by this demurrer is, in effect, whether s. 10 of the Discharged Servicemen's Preference Act 1943 (No. 4989) (Vict), as applied to the Public Service of the State by s. 4 of the same Act, is in force as a law of the State.

In Wenn v Attorney-General (Vict.), ^[F16] this Court declared the sections, together with others, "invalid" on the ground of inconsistency with provisions of valid laws of the Commonwealth, namely those provisions of the Re-establishment and Employment Act 1945 which related to preference in employment. Those provisions expired, by virtue of an express provision in s. 34 as amended in 1952, at the expiration of ten years after the cessation of hostilities in all wars in which Australia was engaged in 1945. That is to say they expired in 1955; and enactments which purported to extend their operation beyond that year were beyond power and void: The Illawarra District County Council v Wickham. ^[F17] The inconsistency with ss. 4 and 10 of the Victorian Act then ceased, and the consequential invalidity of those sections, if still unrepealed by the Victorian legislature, necessarily ceased also. It was an invalidity resulting from the operation of covering cl. 5 and s. 109 of the Constitution. The invalid sections had not been repealed by the Commonwealth legislation; still less had they been rendered void ab initio . They had been made by the Constitution to yield to the Commonwealth legislation, to "remain in abeyance unless and until" that legislation should be no longer law: cf. Attorney-General for Ontario v Attorney-General for The Dominion. ^[F18] One cannot read the judgments in Wenn's Case ^[F19] without seeing that the declaration of invalidity meant no more than this.

The Victorian legislature has never expressly repealed either s. 4 or s. 10 of the Victorian Act, and it remains to inquire only whether either has been repealed by implication.

The operation of the two sections together was to require that in the making of any promotion in the service of the Crown in right of Victoria preference should be given to a suitable and competent discharged serviceman duly applying for the promotion. At the time the sections were enacted there stood a provision in s. 56 of the Public Service Act 1928 (Vict.) that in the promotion of any officer in the clerical division from one subdivision to another subdivision or from class to class regard should be had to the merit, good and diligent conduct, length of service, and relative seniority of that officer and the nature of the work performed by him. No priority was given to any one of these considerations over the others, or, for that matter, over any unmentioned consideration. The passing of the Preference Act established for the first time an order of priority among the considerations to be observed in relation to promotions: first, and to the exclusion of all others, was the fact (if it should be a fact) that an applicant was a suitable and competent discharged serviceman, and after that came together, merit, conduct, length of service, seniority and nature of work performed.

But in 1946 the Public Service Act 1928 (Vict.) was repealed and replaced by the Public Service Act 1946 (No. 5124). The new Act, described in its long title as an Act to consolidate and amend the law relating to the Public Service of Victoria, did not repeat the provisions of s. 56 of the 1928 Act. The topic of appointments to offices in the Public Service (which I take to include promotions- it does not say appointments to the Public Service) was dealt with in s. 32 of the new Act, requiring all appointments to offices to be made by the Public Service Board: sub-s. (1). The section made it the duty of the permanent head of the department concerned to recommend for appointment the applicant whom he considered most suitable: sub-s. (4); and it required that in the appointment of a person to any office consideration should be given first to relative efficiency and, in the event of equality of efficiency of two or more officers, then to relative seniority: sub-s. (5). "Efficiency" was defined by sub-s. (5) to mean special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, diligence and good conduct. The Public Service Act 1946 has now been superseded by the Public Service Act 1958, which repeats the provisions of s. 32 in a section bearing the same number.

The course of legislation which has been described gives rise to the question whether the enactment of s. 32 of the 1946 Act did not necessarily involve the implied repeal of s. 4 of the Discharged Servicemen's Preference Act, and thus leave s. 10 of the latter Act without any application to the Public Service, even in the event of the removal of the inconsistency with Commonwealth law which Wenn's Case ^[F20] was to declare. In my opinion, the answer should be that s. 4 was by implication repealed. The enactment of s. 32 of the Public Service Act 1946 gave effect to a new policy, the very point of which was that the considerations it mentioned should be observed in the order of priority it laid down-an order which it prescribed not only as between those considerations themselves but as between each of them and all other considerations. "First", it said, consideration should be given to relative efficiency (in the defined sense), and "then", in the event of equality of efficiency, to relative seniority. Thus there was introduced a cardinal feature of the existing Public Service legislation. Of course, as a matter of constitutional necessity the direction related only to situations not ruled by the Commonwealth Act: in situations to which the Commonwealth Act applied it prevailed over the State Act, not because the two were capable of standing together but because the Constitution gave predominance to the Commonwealth Act by reason of its very inconsistency with the State Act. But in considering the two State enactments-s. 32 of the new Public Service Act and s. 4 of the Preference Act (applying s. 10 of the latter Act to the Public Service)-the question must be whether they could stand together, "live together", as Viscount Dunedin expressed it in In re Silver Brothers, Ltd. ^[F21] It is not, I think, a case in which two enactments might be made to live together by implying into the later an exception sufficient to allow for the continued operation of the earlier, on the principle generalia specialibus non derogant; for while discharged servicemen are a special class of persons, the Public Service is a special class of employment, and each enactment may be called general or special according to the point of view from which it is regarded.

It is in the nature of s. 32 of the Public Service Act as much as in its words that incompatibility with the provisions of the Preference Act appears. The procedure to be followed-recommendation by the permanent head, followed by consideration by the Board of the specified considerations in the specified order-involves, to my mind, that all other considerations are to be excluded, or at least subordinated. To hold that whenever a suitable and competent discharged serviceman is an applicant he is to have preference by force of the 1943 Act would mean that in such a case the whole procedure is to be set aside. If that had been the intention, I should have thought that almost inevitably s. 32 would have been expressly made subject to the provisions of the Preference Act. But then so large a hole would have been made in the section (assuming the valid operation of the Preference Act at all times), that the new policy which it contained would have been substantially destroyed. In passing the Public Service Act 1946 the Victorian Parliament was making a fresh start in the statutory regulation of its own Public Service; and the Act has every appearance of intending to cover the ground comprehensively so far as valid Commonwealth legislation left room for that to be done. It defined with precision and apparent exhaustiveness the policy to be pursued in regard to appointments. The requirement of s. 32 is explicit, and it seems to me that literal effect should be given to it. If so, there is no room for such a preference to discharged servicemen in the making of appointments that relative efficiency is not to be the first consideration nor relative seniority the second.

In discussing the question of implied repeal I have not taken account of the antecedent probabilities as to the intentions of legislators, for such a question is to be answered, I think, solely upon a comparison of the enactments.

In my opinion the plaintiff's case fails, the demurrer should be allowed, and judgment in the action should be given for the defendant.