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[1961] HCA 32
High Court of Australia
1961-06-02
Windeyer JJ, Fullagar J
Original judgment source is linked above.
High Court of Australia Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Butler v Attorney-General (Vic) [1961] HCA 32
ORDER Demurrer allowed with costs. Action dismissed with costs.
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.) [2] 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 [2] 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 [3] 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 [1] 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.) [2] , 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" [2] . 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. Carrière [3] .
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 [4] . 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 [1] 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 [2] . 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 affirmative 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 [1] , 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" [2] .
It should be pointed out in this connexion 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 [1] . 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" [2] . 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" [3] .
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.
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.) [1] , 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 [2] . 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 [3] . One cannot read the judgments in Wenn's Case [1] 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 [1] 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. [2] . 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.
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 [1] ; 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.) [2] 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" [3] . "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 [1] ; and Latham C.J. in Carter v. Egg and Egg Pulp Marketing Board (Vict.) [2] 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 connexion 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.) [1] : "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" [1] . 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 [2] ). 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" [3] . 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.
In my judgment, when in 1958 Div. 2 of Pt II of the Re-establishment and Employment Act 1945 Cth ceased to operate, the operation of the Discharged Servicemen's Preference Act 1943 Vict. (which in Wenn v. Attorney-General (Vict.) [1] this Court decided was "invalid" for inconsistency in 1947) revived; but because, while the Commonwealth Act was in operation, the Public Service Act 1946 Vict. had been enacted as an exhaustive statement of the law of the State relating to the appointment and promotion of public servants, the Discharged Servicemen's Preference Act 1943 did not in 1959 give the plaintiff any preference in promotion in the Public Service and his claim for a declaration that it did so must fail.
I have had the advantage of reading the judgments of Kitto J. and Taylor J. and I do not desire to do more than express my complete concurrence with the reasons that they give for the foregoing conclusions.
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.) [1] and compare Glasson v. Municipality of Blayney [2] ). This Court, however, held in Wenn's Case [1] 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 [1] 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 [1] 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 [2] , spoke of as laying down a well-settled rule in clear terms. First, in Hill v. Hall [3] 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" [4] 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" [1] . And see R. v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [2] . 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 to-day 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.
Butler
Attorney-General