Illawarra District County Council v Wickham - [1959] HCA 18 - HCA 1959 case summary — Zoe

CTHHCA

Illawarra District County Council v Wickham

[1959] HCA 18

High Court of Australia|1959-04-16|Before: Windeyer JJ, McTiernan J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1959-04-16

Before

Windeyer JJ, McTiernan J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

For the reasons stated in the judgment of my brother Fullagar, which I have had the privilege of reading, I agree that the demurrer should be overruled.

[2]

It is beyond doubt that the legislative authority of the Commonwealth Parliament to make laws with respect to the defence of the Commonwealth extends to the making of appropriate provision of the general character which was made by Div. 2 of Pt. II of the Re-establishment and Employment Act 1945. Justification of such legislation as a law with respect to defence is to be found in the fact that it is designed to deal with the problem of restoration to civil life of those members of the community the normal course of whose lives has suffered the impact and interruption of war service. But in my view the contention that the legislation can be justified merely as a measure designed to reward past members of the services or as one designed to encourage recruiting in the event of a future war must be rejected. That being so, it is clear that the legislation cannot be continued in force indefinitely and it becomes necessary to say whether on 1st August 1958 it was within the legislative competence of the Parliament to provide, by the Re-establishment and Employment Act 1958 (No. 52), that the impugned provisions should subsist until 30th June 1960. These aspects of the matter have already been discussed fully by my brother Fullagar and it is sufficient for me to say, subject to one matter to which I shall presently refer, that I agree entirely with his view of the character of the legislation and with his conclusion that in 1958 it could not "fairly or reasonably be regarded as incidental to the transition from war conditions to peace conditions".

[3]

The qualification which I have just made is concerned with the question whether the particular form of the Act of 1945 was such as to take it beyond legislative authority. Fullagar J. has expressed the view that it was valid when first enacted and my own view is that legislative provisions of the general character indicated are justifiable under the defence power but particular objection to the validity of Div. 2 may well have been open on the ground that the class for whose benefit those provisions were enacted was much too wide. Section 27 of the Act provides that an employer shall, in the engagement of any person for employment, engage, in preference to any other person, a person entitled to preference, unless he has reasonable and substantial cause for not doing so. The expression "person entitled to preference" is the subject of definition and it is wide enough to refer not only to members of the community who had served in the recent war but also to many other persons. The expression "member of the Forces" is the subject of definition by s. 4 of the Act but for the purposes of Div. 2 the meaning of that expression is expressly extended to include "a person who was, at any time during the war which commenced on the fourth day of August, One thousand nine hundred and fourteen, engaged on continuous full-time service as a member of - (a) the Defence Force; or (b) the Army Medical Corps Nursing Service." Immediately following the expansion of the primary definition appears the definition of the expression "person entitled to preference". This "means - (a) a member of the Forces who has been discharged or is awaiting discharge; and (b) a person registered under s. thirty-two of this Act." By s. 32 it is provided that where any person not otherwise entitled to the benefits of this Division considers that, having regard to the service performed by him in relation to the war, he is entitled to receive the benefits of this Division, he may apply to the Central Preference Board for registration and if the board to which the application is made considers that the person is so entitled the board shall, register him accordingly. It will be seen, therefore, that the expression "person entitled to preference" includes at least three distinct categories of persons. It includes members of the community who had served in the forces during the recent war, members of the community who had served in the specified manner during the first world war, and, finally, other persons who had performed service "in relation to the war". Section 32 prescribes no standard in relation to the registration of persons falling within the third class and it may well be open to argument that the according of preference to such persons as a board might consider entitled to preference is outside the limits of the defence power. But, however this may be, it would seem that the general views which I have already expressed would lead to the conclusion that in 1945 it was not competent for the Parliament of the Commonwealth to legislate in such a way as to accord preference in employment to persons on the ground that they had served in the Forces between 1914 and 1918. Possibly it was thought that persons who had served during the recent war should not be given preference in employment over those who had served during the 1914-1918 war but the effect of the legislation, in terms, is to accord preference in employment to the latter class over other members of the community. It seems to me that it may well be contended that the legislation extended too far and I find it difficult by any process of reading down to limit the operation of s. 27 to those persons for whom such provision might then legitimately have been made. The expression "person entitled to preference" is the subject of express definition and it is difficult to see how this expression can be constrained by the application of s. 15A of the Acts Interpretation Act. It is, however, unnecessary that I should express any final view upon these matters for even if the Act was a valid exercise of the legislative power in 1945 it was beyond power when the Re-establishment and Employment Act 1958 (No. 52) was passed.

[6]

The defence power is the only source of power to make the law in question and despite the criticism of its form and terms I am prepared, subject to a reservation with regard to the inclusion of returned soldiers of the 1914-1918 war, to proceed on the footing that the law was valid when it was first enacted in 1945 (Act No. 11 of 1945). The history of the preference provisions in Div. 2 of Pt. II of the Act is, in short, that their operation was originally limited to the expiration of seven years after the cessation of hostilities in all the wars in which His Majesty was engaged at the date of commencement of the Division (Act No. 11 of 1945, s. 34); in 1951 (Act No. 48 of 1951) the operation of the Division was made to apply to members of the Forces who served in the Korea and the Malaya operations; in 1952 (Act No. 89 of 1952) the period of the operation of the Division was extended by three years; in 1955 (Act No. 56 of 1955) the second day of September 1958 was fixed as the date when the Division should cease to be in force; in 1958 (Act No. 52 of 1958) the date was postponed until 30th June 1960. It should be added that in 1953 (Act No. 90 of 1953) s. 28 was repealed and a new section substituted. It is this new section and s. 27 that contain the operative provisions upon which the defendant Wickham relied for his claim to preference in employment from the plaintiff council. In my opinion, however, it is only by virtue of the 1958 Act that the plaintiff could pursuant to s. 28 be directed to grant preference in employment to the defendant Wickham because although Wickham applied to the plaintiff for appointment in February 1958, that is, before 2nd September 1958 when the Act was due to expire. I do not regard s. 3 of Act No. 56 of 1955 taken with s. 8 of the Acts Interpretation Act as preserving the power of a prescribed authority to direct an employer to engage a person entitled to preference who had applied for employment before the date when the legislation ceased to operate. The real question is therefore whether Act No. 52 of 1958 validly extended the operation of Div. 2 of Pt. II of the Act after the second day of September 1958.

[10]

When, as is the case here, a court is called upon to determine whether or not the occasion that would justify such a law exists when the law was made, it must deal with the question broadly. This follows not only from the fact that a law such as is here under consideration is a general law which does not deal with particular cases but also from the fact that the Court in reaching a conclusion is for practical purposes confined to matters of which it can take judicial notice. The existence therefore of particular cases where the re-establishment and employment of returned soldiers is either unusually difficult or quite impossible (cases which are susceptible of particular provision) cannot therefore be decisive of the broad question whether by 1958 the period of re-adjustment after the 1939-1945 war had come to an end. If I had to decide this question de novo upon the basis of facts of which judicial notice could be taken I would say that it had, because the re-adjustment that is contemplated does not involve a determination that the consequences of war are no longer felt; it involves rather the conclusion that Australia and its people have returned to conditions of peace uncertain and hazardous though they be, so that the difficulties now to be met are not those of war or the transition from war to peace but those of living in an uneasy postwar world. Unfortunately history shows that settlement of one war may have in it the seeds of another and that international affairs in the meantime are in a large measure concerned with containing and coping with incidents that result from underlying tensions due in part to the results of past wars in order that those incidents will not themselves give rise to war. This may be so today but if it be so it does not mean, even upon the international level, that the problems of today are those of the war. Furthermore, in national affairs, with which we are here concerned, it is clearer that the problems of today are no longer those of war or of the transition from war to peace, and in Australia the defence power, which in war was found adequate to support legislation under which most of the activities of the people of Australia were controlled, and which I do not doubt is sufficient at all times for the needs of national defence, no longer supports emergency measures of an essentially civil character, which, during the war and in the transition from war to peace, were properly seen as connected sufficiently although incidentally with the war, so as to fall within the scope of the defence power. This conclusion is moreover indicated by what was said by this Court as early as 1949 in R. v. Foster [1] in a passage which is too long to quote and too concentrated to condense, and by its decision at the same time in Collins v. Hunter [2] that an attempt to keep the War Service Moratorium Regulations in operation to 31st December 1949 was invalid. These regulations gave returned servicemen a qualified right to obtain the occupancy of any dwelling that was or was about to become vacant and with regard to them the Court said: "To continue these extreme provisions years after the real demobilization is over and to do so in favour of protected persons whose discharge took place as long ago as four years cannot be considered as incidental to the defence power" [3] . The passing of thirteen years instead of four adds force to these words. See, too, Queensland Newspapers Pty. Ltd. v. McTavish [4] .

[22]

But in 1945 the existing preference legislation was swept away. That of the Commonwealth was largely repealed and replaced by the provisions of the Returned Soldiers and Sailors Re-establishment Act which are here in question; and this new comprehensive Commonwealth Act also superseded the State Acts (Wenn v. Attorney-General (Vict.) [2] ). Its preference provisions expressly bind the Crown in right of the Commonwealth or of a State and all Commonwealth and State authorities (s. 26). The main changes the Act made were: firstly, that those who could benefit under it were a much larger class than those who could have benefited under the laws replaced. Secondly, the conditions in which members of this new and wide class were entitled to preference were less clear and precise than formerly. And thirdly, whereas the earlier enactments were of indefinite duration, the preference sections of the new Act were to expire after seven years. The Act came into operation on 27th August 1945. It is entitled "An Act for the Re-establishment in Civil Life of Members of the Forces, for facilitating their Employment and other purposes". This title indicates its main and obvious purpose. Hostilities had ceased. The Act as a whole was directed to conditions occurring as the result of demobilization. It made elaborate provision for the reinstatement in civil employment of discharged members of the forces, for their vocational training and for various forms of assistance enabling them to become established in civil life. In respect of most of these matters, the class of possible beneficiaries includes substantially all men and women who served on full-time duty in any component of the armed forces during the war which began in 1939, and also the members of certain auxiliary organizations. Obviously the First War characteristic of a "returned soldier", a person who had enlisted voluntarily and had returned from active service abroad, could not be a governing consideration after the Second War. Conditions of service had been different. All members of the forces had not served on the same form of legal engagement. Some measure of conscription had been superimposed upon recruitment by voluntary enlistment; and the original rule of the Defence Act s. 49, that military service outside the Commonwealth and its Territories could not be compelled, had been, up to a point, abandoned. Australian Forces had been deployed in widely separated theatres. And men had served wherever they were sent. The Act as a whole, therefore, was naturally made to apply to all those who had served on full-time duty anywhere, however far from a combat area. But Div. 2 of Pt. II, that is the preference provisions here in question, was not restricted even to that large class. It was made to apply also to anyone who during the First War had been "engaged on continuous full-time service as a member of the Defence Force or the Army Medical Corps Nursing Service". This not only brought within the 1945 preference provisions all those who after the First War would have been described as "returned soldiers", and who had been entitled to the benefits of the antecedent legislation. It also brought in some persons who during 1914-1918 had been members of the Defence Force - as constituted by the Defence Act s. 30 - but who had not served abroad or even engaged to do so, and who up till 1945 had not participated in the rights of returned soldiers. And then, by s. 32, persons who had not been in the forces at all could be included; because for a time any person might apply to the Central Preference Board for inclusion "having regard to the service performed by him in relation to the war" (i.e. the war of 1939-1945). The character of the so-called preference given to this numerous miscellany of men and women who had served in or in association with the forces in either the First or Second World War appears from s. 27. This provides that an employer engaging an employee shall engage a member of the preferred class in preference to any other person "unless he has reasonable and substantial cause for not doing so". Then sub-s. (3) is in the following terms: "In determining whether reasonable and substantial cause exists for not engaging in employment a person entitled to preference, the employer concerned shall consider - (a) the length, locality and nature of the service of that person; (b) the comparative qualifications of that person and of other applicants for engagement in employment in the position concerned; (c) the qualifications required for the performance of the duties of the position; (d) the procedure (if any) provided by law for engaging persons for employment in the position; and (e) any other relevant matters."

[24]

Section 28, in its original form, provided that where a person whom an employer refused to engage considered that, having regard to the provisions of s. 27, he should have been engaged, he might apply to a court of summary jurisdiction constituted by a police, stipendiary or special magistrate. The section was amended in 1953 by Act No. 90 of 1953 passed in consequence of the decision of this Court in Queen Victoria Memorial Hospital v. Thornton [1] . The effect of the amendment is to substitute "a prescribed authority" for "a court of summary jurisdiction". But the prescribed authority is to be a police, stipendiary or special magistrate; and, for present purposes, it matters not whether the matter be considered as s. 28 originally stood, or as it now is. The prescribed authority or magistrate to whom the complaint is made must have regard to the matters set out in sub-ss. (3) and (4) of s. 27; and then, subject to certain restrictions set out in s. 28 (3), he "shall make such order as he thinks just and reasonable in the circumstances". His decision is final and conclusive, except that by s. 29 there is an appeal to the Commonwealth Court of Conciliation and Arbitration by special leave of that court. On such an appeal the Arbitration Court may affirm, reverse or modify the magistrate's order and may "make such order as ought to have been made in the first instance". But, although the language of ss. 27 and 28 is thus language appropriate to judicial review and determination, the matter is not really susceptible of judicial consideration; for as this Court pointed out in Queen Victoria Hospital v. Thornton [1] s. 27 confers no rights which a court can judicially ascertain, examine or enforce. All that it does is to direct an employer to take certain matters into consideration. And all that s. 28 does is to require the prescribed authority, a magistrate, to take the same matters into consideration. If he does so, he has an unfettered discretion as to the order he will make. Moreover, the matters he must consider are stated in very general terms and their relative weight is left quite at large. In deciding whether there is "a reasonable and substantial cause" for passing over a person entitled to preference "the length, locality and nature of the war service" of the applicant must be considered. How these factors are to be assessed is not made clear. And, as between two applicants, each being a person entitled to preference, it is hard to see on what principle comparisons could be made. For example, in considering "locality", how should an employer or a magistrate compare, say, naval service at sea in 1914-1918 with service on land in North Africa or the Pacific, or in the air over Germany, in 1939-1945? And, in considering length of service, how, for example, does one compare time in the field with time as a prisoner of war; and is a man wounded in his first action to get more or less consideration than another man who served long and arduously in campaigns in, say, Gallipoli, France, Tobruk or New Guinea? And how should sea-going service, or service at the front on land, or service in the air, compare with the meritorious performance of essential tasks by those whose duty kept them ashore, on lines of communication or at the base? And, indeed, apart from cases of serious defaulters and men convicted of crime during their service, it is not clear what conclusions as to a "reasonable and substantial cause" are to be drawn from a consideration of the several matters mentioned; for in general men served for the periods and in the places required of them by superior authority. The Act seems to reflect some concept of rewarding meritorious service as well as the need of re-establishing a discharged soldier in civil life, when it requires that the locality and nature of his war service be considered to determine whether a civilian might be engaged in preference to him. The questions to which its words give rise are innumerable. A magistrate called upon to determine a matter pursuant to s. 28 could at best be guided only by some subjective standards. If he had had some experience of active service, some acquaintance with Service organisation and a knowledge of the terrain and conditions of different campaigns, he might be able to formulate some principles on which he would exercise his discretion: but they could only be matters of personal opinion. A magistrate who had not that knowledge and experience would have no guide at all. In its setting the obligation to consider "any other relevant matters" seems to have no determinate meaning.

[27]

I have had the great advantage of reading the judgment of my brother Fullagar. He has stated fully the effect of earlier decisions of this Court as to the defence power and its varying reach in peace and war. It is quite unnecessary for me to attempt to do what he has done. I shall therefore content myself with some comments upon the grounds on which counsel contended that the law in question is related to the naval and military defence of Australia. First they said it is a defence measure because it is a manner of rewarding service in the Forces; and they sought to liken its requirements to deferred pay, pensions, war gratuities and to various other benefits given to discharged soldiers by other provisions of the Act and by the Repatriation Act. The law, they argued, could be regarded as a measure in preparation for war, because it would encourage men to serve in future wars. Secondly, they said it was concerned with the transition from war to peace, with the restoration of peace-time conditions. Each argument merits some examination. There is no doubt that generosity to servicemen on their discharge, assistance to them to establish themselves in civil life and pensions for those disabled as the result of service can have a direct connexion with defence by promoting readiness to serve willingly in war. They may aid recruiting of the services in war and in peace; or, if recruitment be compelled, they may make men readier to serve with a good heart. I select two statements recognizing this; one in recent times, one of long ago. The first is from the judgment of Latham C.J. in Australian Textiles Pty. Ltd. v. The Commonwealth [1] where he said: "Provisions for the repatriation of soldiers and their re-establishment in civil life are directly associated with the defence of the Commonwealth. They are directly so associated in two ways. They are a necessary step in a wise scheme of demobilization, and are of great importance as affecting the defence of the Commonwealth in relation to any possible future war. The community has accepted the services of men in the past war. If the community expects the services of men for defence purposes in the future it is plain that it may be thought to be wise policy, as well as to be a matter of duty, to protect the interests of those who have served in a past war" [2] .

[31]

Such drastic provisions can therefore only be justified as a defence measure if they be supportable on the second branch of the argument, namely as within the defence power because concerned with demobilization and the disbanding of the forces and the re-establishment of their members in civil life. That measures for these purposes are within power is beyond doubt. When the law was enacted in 1945 it met a situation then existing by, in effect, requiring that in the transition of the war-time economy to peace-time conditions, men coming out of the services should have the first opportunity of filling vacancies occurring in civil industry. The period of seven years for which this part of the 1945 Act was originally to continue was, I assume, considered by Parliament to be ample for the repatriation (in the strict sense of return to Australia) and disbanding of the war-time forces; and so it proved. Thus limited, the measure would, I think, have been unquestionably valid had it been restricted to those who had served in the war then ending. But it was not so restricted. The inclusion of the others causes a difficulty; for the Act could not be justified as being for demobilization and for the re-employment in civil occupations of men who had in fact been demobilized and become civilians twenty-five years earlier. Yet their inclusion appears to have been regarded as an essential feature of the legislation; and in my view the preference provisions cannot be construed so as to exclude them without making the preference scheme radically different. If preference could be validly given in 1945 for a limited period, as I think it could, to men who had served in the war then ending, it was, it seems to me, open to the Parliament to decide the nature and extent of the preference. A preference valid for those men would not become invalid because it was provided that it should not prevail against men who had served in the earlier war. This, however, was not the scheme followed. The Act gives both those who served in the 1914-1918 war and those who served in the 1939-1945 war the same preference over other persons. I would myself have thought therefore that the whole of the preference provisions were void when first enacted. But this Court's decision in Wenn's Case [1] seems to make this view untenable. However, whether or not the provisions were valid in 1945 need not now be considered, for the period for which preference was to operate was extended beyond the initial seven years - first to ten years, by Act No. 89 of 1952; then until September 1958 by Act No. 56 of 1955; and then by Act No. 52 of 1958 until 30th June 1960. Yet before the original period of seven years had expired the Forces enlisted for the 1939-1945 war had in fact been disbanded and their members had become civilians in a period of full employment. Thus, even if the legislation were restricted to them, its continuance today is, I think, clearly beyond the defence power, for it cannot be fairly said to have now any direct or substantial connexion with defence. Special provisions restricted to men who had been on active service in Korea and Malaya might, if appropriately limited in time, be within power. But the occurrence of the operations in Korea and Malaya did not enable the period for the re-establishment of men discharged after the 1939-1945 war to be validly extended.

[33]

The scope of defence legislation today cannot be measured or confined by the circumstances of past wars. But the very fact that in the Second World War the whole man-power of the nation had to be controlled, diverted and directed to activities for the prosecution of the war only makes it the more important to remember that the traditional end of the disbanding of war-time forces is the restoration of their members to the status of civilians. In the time of Queen Elizabeth I, Parliament sought to attain this end by the simple course of requiring all idle and wandering soldiers and mariners who had returned from abroad to settle themselves in employment, and declaring those who failed to do so to be guilty of felony. On arrival from overseas soldiers and mariners had to repair to their own parishes where the local justices must find work for them or provide them with relief in the meantime (39 Eliz. c. 17). Opinion had come some distance by 1713 when 12 Anne Stat. 1, c. 13, passed after the Peace of Utrecht, enabled disbanded soldiers, although they had not completed the full apprenticeship required by law, to set up in trades, and gave them for three years an exemption from arrest for debt and from executions on their stock. Nevertheless in England sailors and soldiers discharged at the end of war service were in general left to fend for themselves, and they often suffered great hardship. This was so in the nineteenth century, especially after the reductions and economies following 1815. Of the seamen then paid off, a recent writer has said: "the transition from war to peace in the years following the Napoleonic war was made with a graceless indifference to the welfare of the men who had saved the country from invasion" ( Woodward - The Age of Reform, p. 261). It was clearly within the power of the Commonwealth Parliament to ensure, as it has done, that the same reproach could not be made by future historians of Australia. But the power to make laws for naval and military defence must be considered against a background of established principles of British law concerning the position of the armed forces in the community - against the rule, that is, that in time of peace members of the services should enjoy, as far as their duties permit, the ordinary rights of citizens; but that (with some limited exceptions) they should be subject to the same general law as are other subjects of the Crown; and that disbanded soldiers and paid-off seamen should become civilians, without any permanent legal privileges or immunities different from other subjects. Thus, while it is proper to use the defence power to re-establish soldiers as civilians, it is not, in my view, within the scope of the power to create a privileged class among civilians. This view of course does not mean that any employer (including the Crown and its agencies) may not give such preferences to men who have served in war as he or it thinks proper. Neither, as I have already said, do I mean to cast any doubt on the validity of benefits which out of the resources of the Commonwealth may be given to individual ex-servicemen, such as pensions, hospital treatment, settlement on the land or other forms of advancement.