Between: Butler
And: Attorney-General (Victoria)

Judges: Fullagar J
Kitto 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

Melbourne

Decision by:
Windeyer J

The preference provisions of the Re-establishment and Employment Act 1954 (Cth) ceased to have validity when they could no longer be sustained by the defence power. Thereupon the Discharged Servicemen's Preference Act 1943 (Vict.) came again into operation. It had never lost its place in the Victorian statute book. It had merely been, for the time, invalid-that is to say, suspended, inoperative and ineffective-because the Commonwealth statute had entered into occupation of the whole field. But when Commonwealth law vacated the field the State law was again in charge. On this I agree with Taylor J. whose judgment I have read.

I come to the next question. The Discharged Servicemen's Preference Act 1943 (which I shall hereafter call the Victorian Preference Act) being again in operation, does it now apply to appointments and promotions in the Public Service of Victoria? I think it does. The matter is best appreciated by a chronological narrative.

Before 1946 appointment and promotion in the Public Service of Victoria were governed by the provisions of the Public Service Act 1928. That Act, by ss. 72-74, gave certain persons, who may be conveniently called Victorian returned soldiers of the 1914-1918 war, priority among applicants for appointments. And s. 75 expressly required the Public Service Commissioner, when filling any vacancy by promotion, to have regard to whether any applicant had had war service, and if so to give him preference "having due regard to the circumstances of each case and to the claims of other eligible applicants". Whether an applicant had had war service could be reckoned in the balance when decisions about promotions were being made. Apart from that, the matters to be taken into consideration when appointments to vacancies and promotions in the professional and clerical divisions of the service were being made were set out in ss. 51 and 56. They were, in cases falling under s. 56, described as "merit, good and diligent conduct" and "length of service and the relative seniority" of the officer and "the nature of the work performed by him". In cases falling under s. 51 "fitness" and "seniority" were to be considered; and "fitness" was stated to mean "special qualifications and aptitude for the office to be filled".

That then was the position when the Victorian Preference Act 1943 came into force on 21st March 1944. That Act provides that, in engaging persons or in making promotions, employers in Victoria must give preference to discharged servicemen if they are "suitable and competent", in the sense defined in the Act. "Discharged servicemen" here means men or women discharged from the Forces and who before enlistment had been resident or domiciled in Victoria; and who served in a prescribed theatre of war in either the 1914 war or the 1939 war. Section 10 provides, in effect, that employers in Victoria, when making any promotion, must give preference to any suitable and competent discharged serviceman in their employment who applies for the position. This and the other preference provisions of the Act were, by s. 4 (1), expressly made applicable to employment by or under the Crown in right of the State of Victoria. They superseded the more limited provisions for preferences for returned soldiers that, as mentioned above, had been given by ss. 72 and 75 of the Public Service Act 1928; and these were expressly repealed (s. 4 (3)). The overriding effect of the Victorian Preference Act was emphasized by s. 3, which provided 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".

This of course would yield to any later enactment; but it does indicate how far-reaching the Victorian Parliament intended its Preference Act to be. The Act was in full force and effect in Victoria until 27th August 1945, when the Re-establishment and Employment Act (Cth) came into operation.

The Commonwealth Act provided that discharged servicemen seeking employment should be given preference over other applicants. But it said nothing as to the promotion of men already in employment. And it has been accepted that s. 27 (5) (a) indicates that the Act does not affect promotions (see Wenn v Attorney-General (Vict.) ^[F32] and compare Glasson v Municipality of Blayney ^[F33] ). This Court, however, held in Wenn's Case ^[F34] that the Act was intended to provide exhaustively and exclusively for the whole subject of preference for discharged servicemen throughout Australia. So that, although the Commonwealth law made no provision for preference in promotions, the whole of the State Act, including its requirements concerning promotions, was inoperative while the preference provisions of the Commonwealth Act were in operation. They are no longer in operation. The Victorian Preference Act is again in operation as part of the statute law of Victoria. In the meantime, and while the Victorian Preference Act was in abeyance, the Public Service Act 1928 had been repealed by the Public Service Act 1946: That Act provides (by s. 32 (5)) that "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". "Efficiency", it is declared, here "means special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit diligence and good conduct". These, it will be noticed, were qualities that previously had to be considered, along with seniority, under either s. 51 or s. 56 of the earlier Public Service Act, that of 1928. What the 1946 Act did was to make efficiency, in the sense the Act gives that term, a matter to be considered before seniority, which was made secondary to it. But that does not seem to me to involve a conclusion that the Parliament of Victoria repealed the provisions of its earlier statute, which had expressly given an overriding preference to some ex-servicemen in the Public Service of the State. While the Commonwealth law occupied the field the question could not have arisen. But the matter is now one of State law only.

The opposite conclusion from that I have reached would mean that the Parliament of Victoria, by using the words it did to make considerations of efficiency dominate seniority, said that the Crown in right of Victoria is not bound, as it used to be bound, and as every private employer in Victoria still is bound, to give preference to some discharged servicemen. It would mean that the Parliament of Victoria had prohibited any consideration of war service when promotions and appointments were being made in the service of the Crown-for that is what is said: that the matters referred to in s. 32, and no others, are to be considered, efficiency first, seniority sometimes and war service not at all. And that, it is said, is the result of an Act passed in the year 1946, at a time when hundreds of men had just been discharged from the armed services and had re-entered civilian employment in Victoria or were seeking employment there, and when many others were still awaiting discharge. The Parliament of Victoria, it is said, then passed an Act depriving them of the advantages that three years earlier it had conferred and denying them advantages similar to those that in the Public Service Acts in force before 1943 had always been given to returned soldiers of the 1914-1918 war. I do not think we must impute that intention to Parliament, for I do not think that is what the Public Service Act 1946 properly construed means. What was "the mischief" that the amendment was to remedy? Surely not that in 1943 some privileges had been given to returned soldiers in the service of the Crown? Are we to say that in 1946 the Parliament of Victoria, looking to the day when the temporary legislation of the Commonwealth Parliament under the defence power would come to an end, was intending to free the Crown from obligations to returned soldiers, yet leave other employers bound by them-that Parliament meant that in the service of the Crown in time of peace service of the Crown in time of war should be disregarded? I do not think so. It is urged that the requirements of the Victorian Preference Act cannot stand with the provisions of the Public Service Act 1946. I do not think so. No such difficulty was suggested when Wenn's Case ^[F35] was heard in 1948. On the contrary, it was then argued, on behalf of the Attorney-General of Victoria, that the Victorian Preference Act regulated promotions in the Victorian Public Service notwithstanding the Commonwealth Act. The Court did not accept this contention and held that the Commonwealth law was inconsistent with the State preference provisions. But it was never suggested that they had been already repealed by the State Parliament. Had that been so, the question in Wenn's Case ^[F36] need never have arisen, and the case could have been very quickly disposed of. We ought not to approach the question in this case as if the Legislature when it passed the Public Service Act 1946 had forgotten that in 1943 it had conferred advantages upon returned soldiers. For, even if that were likely, s. 36 (2) of the 1946 Act shows that it was not so. And it is not that the Legislature when passing the 1946 Act forgot to repeal earlier enactments that it regarded as inconsistent with it. It did so expressly by s. 2. If it had intended to repeal s. 4 of the Preference Act why should it have not added it to the list? But it is said we must find that by implication it manifested an intention to do so. The generally accepted principles governing the repeal of statutes by implication are to my mind against this proposition.

In Maxwell on The Interpretation of Statutes 8th ed. (1937) p. 147 it is said that:

"A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention".

I need not refer to all the authorities on which this passage is based. They amply support it. It is enough to quote the two statements that Bankes L.J. in Flannagan v Shaw, ^[F37] spoke of as laying down a well-settled rule in clear terms. First, in Hill v Hall ^[F38] where Cleasby B. cited Dwarris on Statutes, 2nd ed. (1848) pp. 530, 531, for the following passage:

"Every affirmative statute is a repeal of a precedent affirmative statute, where its matter necessarily implies a negative; but only so far as it is clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy such that the two Acts cannot be reconciled".

Secondly, Lord Selborne L.C. in Seward v "Vera Cruz" ^[F39] said:

"Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so". ^[F40]

And see R. v Connell; Ex parte The Hetton Bellbird Collieries Ltd. ^[F41] The direction given in 1946 was that certain matters, that in the Public Service had always to be considered, were thereafter to be considered by the Public Service Board in an order, one first the other next. I do not read this as meaning that the Board is not, independently of considering them, to have regard to the special provisions of s. 4 of the Victorian Preference Act.

I would add one thing to avoid any misunderstanding. There are now thousands of adult Australians who were too young to have volunteered to serve, or to have been compelled to serve, in war. Whether or not compulsory preference in employment for discharged Victorian servicemen is desirable today is a controversial question. But it is a question of policy for the Parliament of Victoria, not a matter for a court. One could wish that the Parliament had recently expressed its will on it. It has not. It has simply left its 1943 Act on the statute book. I am unable to accept the argument that in 1946 it made that Act inapplicable to the Public Service of Victoria.

The Court having decided to entertain this action notwithstanding the serious doubts as to the propriety of doing so that are expressed by Taylor J., I am of opinion that the demurrer should be overruled and the declaration sought made.