Butler v Attorney-General

[13]

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 It was argued that this provision was inconsistent with the port order, and by implication repealed it.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] .

[23]

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.

[30]

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.

[33]

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.

[44]

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.

[46]

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.

[48]

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.

Butler v Attorney-General - [1961] HCA 32 - HCA 1961 case summary — Zoe

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Before

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Judgment (51 paragraphs)

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