Wenn v A-G

The persons entitled to the benefits of the Act are differently defined in the respective Acts. The Commonwealth Act, s. 4, defines "members of the forces" so as to include servicemen who did not serve outside Australia and members of the armed forces of other parts of the King's dominions who were born in Australia or domiciled in Australia immediately before entering the forces and, for some purposes, persons who served in the 1914-1918 war: see s. 25. The qualifications for benefit under the State Act are quite different. The benefits of the Act are given to "discharged servicemen." "Discharged serviceman" is defined in s. 4 of the Act in such a way as to make it necessary for the serviceman to have a specific connection with Victoria. He must have enlisted in Victoria or been domiciled in Victoria when he enlisted or was enrolled. But, further, he must have served in a prescribed theatre of war in the war which commenced in September 1939. The theatres of war as prescribed by proclamation are all overseas, except the Darwin area (for a period) and New Guinea. All the men qualified under the Victorian Act are also qualified under the Commonwealth Act, but men who enlisted in other States and were not domiciled in Victoria do not come within the Victorian Act, and men who were domiciled in Victoria or who enlisted in Victoria do not come within that Act unless they served in the prescribed theatres of war. Thus many "members of the forces" entitled to benefits under the Commonwealth Act would not be "discharged servicemen" within the meaning of the State Act and would therefore have no rights under that Act, though they would have rights under the Commonwealth Act.

The Commonwealth Act contains 136 sections and makes elaborate provisions for the benefit of ex-servicemen with no distinctions relating to the State with which a man was in some way connected. The provisions relating to reinstatement in employment and preference in employment constitute two Divisions of one Part of the Act. Other Divisions of that Part also relate to employment. The other Parts deal with vocational training, disabled persons, demobilization, re-establishment assistance, servicemen's settlement, housing, legal aid bureaux and war service moratorium. Thus the Commonwealth Act deals extensively and in detail with many aspects of rehabilitation upon an Australian basis. The State Act is limited to the subject of employment, and, as already stated, requires a specific connection with the State of Victoria in order to qualify for the benefits of the Act.

Section 7 of the Victorian Act provides for the reinstatement of discharged servicemen (as defined) if an application is made within a particular time and creates offences for failure to comply with the provisions of the section. The conditions of reinstatement and the excuses for failure to comply with the statute are different from those provided in the Federal Act, ss. 10 to 21, dealing with the same subject.

The Commonwealth Act, s. 16, is the principal provision with respect to reinstatement in employment. It provides that where an application has been made under Division 1 and is still in force the former employer shall make employment available to the applicant in accordance with the section. Sub-section (3) of the section provides that the employment to be made available under the section shall be employment in the occupation in which the applicant was employed immediately prior to the commencement of his period of war service "and under conditions not less favorable to him than those which would have been applicable to him in that occupation if he had remained in the employment of the former employer, including any increase of remuneration to which he would have become entitled if he had remained in that employment." In Commissioner for Railways (N.S.W.) v. McCulloch [1] it was decided that under this provision a member of the forces entitled to reinstatement had a right to be replaced in a position in which he would preserve his seniority in relation to other employees. Accordingly, where promotion is affected by seniority, the preservation of relative seniority has a relation to promotion. Any existing advantages due to seniority are advantages of which a person entitled to reinstatement under the Federal Act cannot lawfully be deprived upon reinstatement, provided that, if he had remained in his employment, he would have had that seniority.

But it is not denied that a State Parliament, notwithstanding this provision (s. 16), may alter its Public Service Act by varying conditions of employment and that such variations will be effective in the case of servicemen as well as in the case of other men, provided, however, that such provisions are of a general character and do not prejudicially affect servicemen as compared with other employees. Thus, for example, the Victorian Public Service Act 1946, s. 32 (passed after the Discharged Servicemen's Preference Act), is a general provision relating to promotion in the service. It provides that all appointments to offices in the Public Service shall be made by the Public Service Board, and sub-s. (5) of that section is in these terms: - "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." This provision 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. This provision affects all State public servants whether they are discharged servicemen within the meaning of the Act or not. But it has not been argued that the Federal Act, s. 16, prevents the operation of this legislation.

Section 8 of the State Act imposes limitations upon the application of ss. 9 and 10, excluding, for example, appointments of certain relatives. There is no such exclusion in the Commonwealth Act in relation to appointments.

Section 9 (1) provides for preference in employment to be given to suitable and competent discharged servicemen who apply where invitations for appointment are given by public advertisement. This provision applies expressly to appointments and promotions. Section 9 (2) provides for the case of appointment to any position (and therefore for promotion) without previous public advertisement. In that case if an employer appoints any person other than the discharged serviceman the appointment is to be deemed provisional and within the period of seven clear days a discharged serviceman may apply in writing, and such a man will then be entitled to preference in appointment or promotion.

These provisions are quite different from the provisions of the Commonwealth Act contained in Div. 2 of Part II. (ss. 22-34) of the Commonwealth Act.

It is conceded by the defendant that the provisions of the State Act relating to reinstatement and preference in employment are inconsistent with the provisions of the Commonwealth Act and are therefore rendered inoperative by s. 109 of the Constitution. Section 109 provides 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."

The question which arises in the present case relates to the subject of promotion. The plaintiff contends, and the defendant denies, that the State Act is invalid or inoperative in relation to promotion because the provisions of the Act are inconsistent with those of the Federal Act.

The plaintiff is a member of the Public Service of Victoria and claims that he is entitled under the Public Service Act 1946 to promotion to a position of Senior Warder at the penal establishment of Pentridge. The plaintiff is not a discharged serviceman within the meaning of the Victorian Act. He would be entitled to be promoted to the position which he seeks unless the Public Service Board of Victoria is bound by the State Act to promote a discharged serviceman in priority to him. He issued a writ in the Supreme Court of Victoria claiming a declaration that the provisions of the Victorian Act do not apply to promotions within the Public Service of the State of Victoria. The defendant, the Attorney-General for the State of Victoria, raised certain contentions of law in the defence. In the first place, the defendant contended that the Victorian Act is valid and, in particular, that s. 10, which relates to promotion, is not rendered invalid by the Commonwealth Act. In the alternative the defendant contended that the Commonwealth Act is invalid as beyond the constitutional power of the Commonwealth Parliament, that on its true construction the Commonwealth Act does not apply to promotions in the Public Service of Victoria, and that, alternatively, if the provisions with respect to promotion do so apply, they are beyond the power of the Commonwealth Parliament. The action was removed to the High Court and it was ordered that the questions of law raised by the defence be argued before the Full Court. The Commonwealth of Australia was given leave to intervene.

Both Commonwealth and State Acts relate to employment generally. They apply to what may be called private employers, and also in terms to employment by the Crown. The Commonwealth Act in s. 10 defines "employer" as including the Crown (whether in right of the Commonwealth or of a State) and any authority constituted under the law of the Commonwealth or of a State or Territory of the Commonwealth. Section 26 provides that the application of Div. 2 of Part II. (Preference in Employment) shall extend in relation to employment by the Crown in right of the Commonwealth or a State. In the State Act s. 4 provides that the provisions of s. 7 (reinstatement) and ss. 9-12 (new appointments, promotions, dismissals) shall be observed in respect of employment by or under the Crown in right of the State of Victoria, as if the Crown were an employer within the meaning of the Act.

Section 10 (1) of the State Act is in the following terms: "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." This is the provision the validity of which is challenged. It requires preference in promotion to discharged servicemen as defined in the State Act. It is argued for the defendant that the Commonwealth Act does not deal with the subject of promotion at all, and that therefore there is nothing to prevent the State Parliament making provisions upon that part of the subject of rehabilitation of discharged servicemen.

The Commonwealth Act deals with reinstatement in Part II., Div. 1, and with preference in employment in Part II., Div. 2.

Section 27 in Div. 2 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." "Person entitled to preference" is a phrase defined in s. 25. With an immaterial exception it means a member of the forces who has been discharged or is awaiting discharge and, as already stated, "member of the forces" is defined in s. 4 in such a way as to include many discharged servicemen who would not be discharged servicemen within the meaning of the State Act.

Section 27 (3) contains provisions setting out the matters which an employer is required to consider in determining whether reasonable and substantial cause exists for not engaging in employment a person entitled to preference. Section 27 (4) contains provisions for determining who is to receive preference between two or more persons entitled to preference. Section 27 (5) provides: "Nothing in this section shall - (a) apply in relation to the engagement for employment by any employer of a person who is already employed by him." Thus it is clear that s. 27 does not apply to promotions of persons already in the service of an employer, but only to preference in giving employment to a person not already in the employment of the employer engaging an employee. The Commonwealth Parliament deliberately abstained from giving preference in respect of promotion. The result is that the Federal law does not provide that preference shall be given in promotions. The State law does provide for such preference.

Section 24 of the Commonwealth Act is in the following terms: - "(1) The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the forces, of any law of the Commonwealth or of a Territory of the Commonwealth, or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law, and whether the law, award, order, determination or agreement was enacted, made or filed before or after the commencement of this section. (2) The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the forces, of any law of a State, or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law, and whether the law, award, order, determination or agreement was enacted, made or filed before or after the commencement of this section."

Sub-section (1) of this section is effective to exclude the application of any provisions of existing Commonwealth laws or awards &c. made under such laws which provide for preference "in any matter relating to the employment of discharged members of the forces." The sub-section, notwithstanding its terms, could not, however, operate so as to exclude the application of a subsequent Commonwealth law which made a provision relating to such employment. The Parliament cannot limit the legislative power of Parliament by providing that a statute shall not be amendable or repealable, or that it shall operate notwithstanding any subsequent legislation: (Duke of Argyll v. Inland Revenue Commissioners [1] ; South-Eastern Drainage Board (S.A.) v. Savings Bank of South Australia [2] ).

1. (1913) 109 L.T. 893. 2. (1939) 62 C.L.R. 603.

The first contention for the plaintiff is that s. 27 itself contains in sub-s. (5) a provision which has the effect of excluding the provisions of any State law providing for any preference in promotions to any persons entitled to preference under the Commonwealth Act. It is argued that s. 27, sub-ss. (1) to (4), provide for preference in new engagements and that s. 27 (5) has the effect of providing that there shall be no obligation to give any preference in the engagement for employment by any employer of a person who is already employed by him - so that an employer may at will employ in a new position a person already employed by him and therefore may promote him without being subject to any of the provisions of the section. Such a provision, it is contended, shows the intention of the Commonwealth Parliament that, while there shall be preference to certain members of the forces in relation to new employment, there shall be equality between them and other persons in relation to promotions.

The defendant answers this contention by saying that the Commonwealth Act in s. 27 simply makes no provision as to promotions but leaves the subject of promotions free to be dealt with, if the State Parliaments think proper, by State statutes.

In my opinion it is difficult to construe s. 27 by itself as impliedly providing that there shall be no preference in promotions to discharged members of the forces. Certainly it provides positively for preference in engagements, and it also provides that, so far as Federal law is concerned, there shall be no preference in promotions. But it does not provide that it shall not be lawful to give preference in promotions. It provides only that s. 27 shall not have the effect of giving such preference and therefore does not necessarily exclude State legislation upon that subject.

The second contention of the plaintiff is based upon s. 24 (2). This section does in terms exclude any law of a State providing for "preference in any matter relating to the employment of discharged members of the forces." Promotion is employment of an employee in a higher position than that previously occupied by him. Preference in promotion of employees who are discharged members is preference in a matter relating to the employment of such discharged members and is therefore within the terms of s. 24 (2). This sub-section is relied upon as an express provision showing the intention of the Commonwealth Parliament that the provisions of Div. 2 of Part II. of the Commonwealth Act shall be regarded as an exhaustive and exclusive treatment, not only of the precise subject matters with which they deal, but of the whole subject of "preference in any matter relating to the employment of discharged members of the forces."

If the Commonwealth Parliament, in a law with respect to a subject within its legislative powers, enacts provisions which show that the Parliament intended to make an adjustment with respect to certain matters upon a particular basis to the exclusion of any other adjustment, then the result is to exclude the application of any State legislation or other provision which would "disturb or vary the Federal adjustment": see Clyde Engineering Co. Ltd. v. Cowburn [1] . Where such an intention is manifested, then the Federal provision is the only provision to be applied "both as to what is granted and what is refused" [2] . In Ex parte McLean [3] it was held that when a Federal Act in relation to a matter which is within both Federal and State legislative power prescribes "what the rule of conduct shall be" then if the intention of the paramount legislature is "to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed it is inconsistent with it for the law of a State to govern the same conduct or matter" [4] . Where it can be seen by an examination of the terms of the Federal statute that "the federal scheme will be hindered or obstructed" by any additional regulation by any other authority, then Federal legislation excludes the exercise of State authority with relation to that subject matter (Stock Motor Ploughs Ltd. v. Forsyth [5] ). In such a case the Commonwealth Parliament shows an intention to "cover the field," to use the phrase of Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn [6] , and where such an intention is discoverable the State is prevented from entering the field. Sometimes there may be a difficulty in determining what the "field" is as well as in determining whether there is an intention to "cover the field." In the present case, however, the legislature has made its intention clear by saying in s. 24 (2) that the subject matter as to which it is intended that the legislation shall be exclusive and exhaustive is "preference in any matter relating to the employment of discharged members of the forces." This provision expressly states an intention to make the Federal legislation exclusive and exhaustive.

1. (1926) 37 C.L.R. 466, at p. 491. 2. (1926) 37 C.L.R., at p. 491. 3. (1930) 43 C.L.R. 472. 4. (1930) 43 C.L.R., at p. 483. 5. (1932) 48 C.L.R. 128, at p. 147. 6. (1926) 37 C.L.R. 466.

The defendant contends, however, that the doctrine of "covering the field" applies only where the Commonwealth Parliament has itself made some positive provision with respect to a particular subject with which provision any State law on that subject would be inconsistent. Section 27 (5) (a) excludes the application of any preference in promotion by virtue of the Federal Act. It does not make any positive provision with respect to promotions. The defendant argues that therefore the field is free for the States, the Commonwealth Parliament not having provided any law with respect to promotions, so that s. 109 of the Commonwealth Constitution cannot apply so as to render any State law inoperative.

In a series of cases (to several of which I have referred) it has been held that it may be ascertained by inference from the nature and scope of the provisions of a Commonwealth statute that it was the intention of the Parliament that the provisions of the statute should be the only law to be applied to the subject, so that it can be seen that the Commonwealth Parliament intended that there should be no State law dealing with the particular subject matter in question. Where such an inference can properly be drawn the Commonwealth legislation prevails over any State law by virtue of s. 109 of the Constitution. In the Commonwealth Act now under consideration, however, the Commonwealth Parliament has not left this matter to be determined by an inference (possibly disputable) from the nature and scope of the statute. The Parliament has most expressly stated an intention which in the other cases mentioned was discovered only by a process of inference. If such a parliamentary intention is effective when it is ascertained by inference only, there can be no reason why it should not be equally effective when the intention is expressly stated.

Section 24 discloses an intention that, so far as the matter of preference in employment to discharged members of the forces is to be governed by law, the Federal law only shall apply. The Federal Act does not prevent an employer voluntarily giving preference to a discharged serviceman over others if he chooses to do so. What s. 24 (2) deals with is State laws, awards &c., which would by compulsion require any preference in employment to such men other than the preferences for which the Federal statute provides. The subject matter of the Federal Act is, as in Clyde Engineering Co. Ltd. v. Cowburn [1] , compulsion by law in relation to a particular matter. In that case [2] a Federal award was interpreted as meaning that, as far as wages were concerned, "the only compulsive wages - that is, compulsive by law - are those required by the award." So in the present case the intention of the Federal Parliament, as expressly stated in s. 24 (2) of the statute, is that the only compulsory preference in relation to employment to be given to discharged servicemen is to be that for which the Federal Act provides.

1. (1926) 37 C.L.R. 466. 2. (1926) 37 C.L.R., at p. 493.

Section 10 of the State Act is a law giving preference in promotions to discharged servicemen who are not given any such preference under the Federal Act. As the Federal law is expressly declared to be exhaustive and exclusive the Federal law prevails over the State law unless the Federal law is invalid for some reason.

It is argued for the defendant that s. 24 (2) is really an attempt to prevent State Parliaments legislating upon the subject with which it deals (whether the Commonwealth Parliament passes legislation upon that subject or not) and that s. 24 (2) is invalid because it is a law with respect to State legislative powers and not with respect to the subject of the restoration of discharged servicemen to civil life. The "rehabilitation" - the restoration to and re-establishment in civilian life - of discharged members of the forces is a matter which falls within the legislative power of the Commonwealth Parliament: see Attorney-General (Commonwealth) v. Balding [1] . The statutory provision under consideration in that case was part of a provision "for the re-establishment in civil life of persons who have served in the defence forces of the Commonwealth when they are discharged from such service." It was held that "that is a matter so intimately connected with the defence of the Commonwealth as manifestly to be included within the scope of the power" - i.e. the defence power: see also Real Estate Institute of N.S.W. v. Blair [2] . Section 24 (2) is a provision prescribing the area within which Federal law, as enacted in the Act, is to apply to the exclusion of State law in respect of a subject as to which the Commonwealth Parliament has full legislative power. All valid Federal laws prevail over State laws which are inconsistent with them - Constitution, s. 109. But the Federal laws which so prevail do not therefore become laws invalidly attempting to limit the powers of State Parliaments.

1. (1920) 27 C.L.R. 395. 2. (1946) 73 C.L.R. 213.

The defendant also contends that if the Commonwealth law is construed so as to exclude the giving by State law of preference in promotion to discharged servicemen, then the Commonwealth law is invalid. It is argued that while the Commonwealth Parliament may have large powers in giving benefits or advantages of one kind or another to discharged servicemen, that Parliament has no authority under the defence power to provide for the denial of benefits to discharged servicemen. The exclusion of State law in this case has the effect of denying to certain discharged members of the forces the benefit of preference in promotion. It is contended that a Federal law refusing benefits and advantages to discharged servicemen is outside the defence power because it cannot be described as a provision for reinstatement of such men in civil life. In my opinion the Commonwealth Parliament acts within the defence power when it prescribes what rights and advantages shall be given by law to such persons, and when it prohibits the giving of further rights and advantages. The Federal Parliament may think it wise to do this upon an Australian basis so that all returned men in all parts of Australia are treated in the same way. It is in my opinion within Federal legislative power to prevent the operation of separate and possibly varying State enactments dealing with the same subject. It appears to me obvious that great confusion, dissatisfaction and unrest might well result from the specification by the laws of the Commonwealth and six States of different qualifications of servicemen for benefits, of different conditions attached to those benefits, and of different benefits required by law to be given. The Commonwealth Parliament in the statute under consideration has exercised its complete control of this subject so as to establish uniformity throughout Australia, so that the same provisions will apply to the same classes of men, wherever they were domiciled, wherever they enlisted, and wherever, within the limits prescribed by the Commonwealth Parliament, they served in relation to the war. As Higgins J. said in Attorney-General v. Balding [1] , federal law provides for administration "on one systematic basis by Commonwealth authority." It is in my opinion within the power of the Federal Parliament to make such a provision in order to exclude all State law upon the subject and thus produce uniformity throughout Australia.

It was further argued that the Commonwealth Parliament had no power to make a law relating to the employment of State public servants. It cannot be maintained, however, that persons employed by the States are, in respect of their employment, outside any possible application of Federal laws. It has been held in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [2] that industrial laws of the Commonwealth enacted under the power conferred by s. 51 (xxxv.) of the Constitution may validly be applied to persons employed by a State in industry and in particular to employees upon State railways. In South Australia v. The Commonwealth [3] it was held that the Income Tax (War-time Arrangements) Act 1942 was valid (under the defence power) though it contained provisions which removed members of the Public Service of the State from that service and transferred them to Commonwealth employment. The Commonwealth can conscript State public servants for war service, just as it may conscript any other person: see particularly [4] : see also Reid v. Sinderberry [5] as to the control of manpower in the Commonwealth for purposes of defence. State public servants are not entitled to any exemption from war service, and there is no reason for excluding them from the benefits of a Commonwealth statute providing for reinstatement and preference in employment when they are discharged from the defence services - unless, indeed, the final argument for the defendants should succeed.

1. (1920) 28 C.L.R. 129. 2. (1942) 65 C.L.R. 373. 3. (1942) 65 C.L.R., at pp. 431, 437, 468. 4. (1944) 68 C.L.R. 504.

That argument is that the principle of the decision in Melbourne Corporation v. The Commonwealth [1] applies in this case. There it was held that Federal legislation was invalid if it curtailed or interfered in a substantial manner with the exercise of State constitutional power - if Federal power was used for a purpose of restricting or burdening the State in the exercise of its constitutional powers - or if the law was aimed at restriction or control of a State in the exercise of its executive authority.

In the present case, however, it appears to me to be difficult to say that the Federal Act really curtails or interferes with or burdens any essential governmental operation of the States. It is a general Act applying to all employers. It does not "single out" the States by any discriminative provisions. An exclusion of State public servants from Federal benefits given to all other ex-servicemen would be open to more serious objection on the ground suggested. The Federal Act does not burden the States in the exercise of their constitutional powers. It requires the States to reinstate discharged servicemen in their former employment in accordance with its provisions and to give preference in new engagements to persons who are entitled to preference under the Federal Act. Treatment of discharged servicemen who are State public servants in the same way as other discharged servicemen may well be thought to assist rather than to impede the administration of a State public service. There is nothing in the Federal Act which compels any State to re-employ or to employ an incapable or unsuitable person. In my opinion there is no reason for describing such legislation as this as preventing the States in any way from discharging their essential governmental functions.

Section 18 of the Commonwealth Act limits the rights of employers in relation to the termination of employment or the variation of the conditions of employment of persons reinstated under the provisions of the Act. The conclusions which I have reached make it unnecessary for me to consider the arguments which were based upon this section.

In my opinion s. 10 of the State Act is inoperative because inconsistent with the Commonwealth Act. It is conceded that ss. 7 and 9 are inconsistent with the Commonwealth Act. Section 8 has significance only in relation to ss. 9 and 10. Section 4 is part only of the whole scheme of the State Act, and falls with the other sections mentioned.

The provisions of the Act contained in all these sections are therefore inoperative. They are "invalid" in the sense in which that word is used in s. 109 of the Constitution and a declaration should be made accordingly.

I have had the advantage of reading the judgment of my brother Dixon and agree with his reasons and the order proposed by him.

The purpose of this action is to establish that the provisions of the Discharged Servicemen's Preference Act 1943 of Victoria affecting promotions are invalid because they are inconsistent with the Re-establishment and Employment Act 1945 of the Commonwealth. The plaintiff is a permanent officer of the public service of Victoria who is not a serviceman and the Victorian Act would adversely affect his prospect of promotion. He therefore desires its invalidation. The Federal statute says nothing to prejudice his chances of promotion and he has therefore no objection to it but, on the contrary, relies upon it to exclude the operation of the State law. To his challenge of the State provision on the ground of conflict with the Federal Act, the State, while denying the inconsistency of the particular provision as to promotion, sets up an alternative answer by way of confession and avoidance. That answer is that the Commonwealth Act is void if and in so far as it attempts to exclude the operation of State enactments with respect to the promotion of servicemen generally and if and in so far as it attempts to exclude the operation of State enactments governing the promotion of servicemen in the public service of the State. In so far as it attempts to do the first, it is said to go beyond anything relevant to the defence power. In so far as it attempts to do the second, it is said to be invalid because it amounts to an unconstitutional interference with the parliamentary and executive control of the State public service.

In the view I have formed of the legislation much of the State's answer which I have described as made by way of confession and avoidance ceases to be relevant. For I have come to the conclusion that the section in the Victorian statute to which the plaintiff objects is but part of an inseparable State plan dealing with the reinstatement in employment and the appointment and promotion of discharged servicemen and that as a whole it is in conflict with the provisions of the Federal statute. The provisions embodying the State plan apply to employment generally in Victoria and by an express provision are specifically extended to employment by or under the Crown. It is as State provisions applying generally to employment in Victoria that I think that they are in fatal collision with the Federal legislation. But I think that the provision extending them to the Crown clearly depends upon their existence as a valid law of general application and it cannot survive their invalidation. This view of the State provisions makes it quite unimportant whether the Federal Act does or does not apply to the Crown in right of the State. The reasoning would be the same if it contained no provision purporting to make it applicable to the State Crown and it would therefore be the same whether the provision it does contain purporting to do so is or is not valid. Accordingly, I do not regard this case as involving the question whether the inclusion of the State Crown in the operation or application of the Federal Act is valid.

The provision of the Discharged Servicemen's Preference Act 1943 of Victoria which is directly involved is s. 10. Its purpose is to require an employer in promoting an employee to prefer a discharged serviceman. But it is preceded by provisions which deal with the reinstatement of discharged servicemen in employment (s. 7); and with preference to discharged servicemen, whether in or out of an employer's service, when appointments are made (ss. 8 and 9). Section 4 (1) requires that these provisions should be observed in respect of employment by or under the Crown in right of the State of Victoria as if the Crown were an employer within the meaning of the Act. Section 4 (2) empowers the Governor in Council to make or cancel appointments or promotions or do any other act matter or thing necessary or expedient to give full effect to the provisions. In s. 4 we have a provision that is directory and not mandatory. For it depends upon administrative action and neither penal consequences nor invalidity ensue from a non-observance of the obligation which sub-s. (1) imposes by reference to the section it mentions. It is, of course, evident that the question who is a serviceman for the purpose of this legislation is cardinal to its operation. The State Act (s. 2) defines "serviceman" with some strictness so that it covers only a limited class of those included in the expression "member of the forces" as defined by the Commonwealth Re-establishment and Employment Act 1945. The definition is limited in two notable directions. In the first place it is restricted to those who were connected with Victoria either as a place of domicile or of enlistment. In the second place it covers only those who served in a prescribed theatre of war, which in substance and effect means overseas. Now it is obvious that if preference is given by the State law to a class more limited than those who are entitled to preference under the Federal law, a section of those who, under Federal law, are entitled to stand as a class upon an equality with one another as members of a preferred class, will, under State law, belong to the same class as non-servicemen over whom this preference is given. It is unnecessary to state fully the definition of member of the Forces contained in s. 4 of the Federal Act and extended for the purposes of Div. 2 of Part II. by s. 25. It is sufficient to say that it includes all members of the A.I.F., including any who may not have actually served abroad, and members of the Citizen Forces enlisted, appointed or called up for continuous service whether they served at home or abroad. Div. 1 of Part II. of the Federal Act relates to reinstatement in civil employment. Section 16, which is perhaps the central provision of the Division, requires the former employer to make employment available to a person whom he employed but who joined the Services. The employer must make employment available to him when that person applies for reinstatement, having completed his war service. He must make employment available in the old occupation "under conditions not less favourable to him than those which would have been applicable to him if he had remained in the employment of the former employer" (s. 16 (1) and (3) (a)).

Division 2 relates to preference in employment and is to govern that question for seven years (s. 34). Here the central provision is s. 27. Sub-section (1) requires 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. Sub-section (3) states a number of matters which an employer must consider in determining whether such cause exists. Sub-section (4) states the matters that must be considered when an employer is called upon to decide between two or more servicemen entitled to preference. Sub-section (2) provides that any person entitled to preference may apply in writing, to the employer concerned, to be engaged for employment in any position, notwithstanding that employment in that position has not been offered to him. This would, I think, enable a member of the forces inside an employer's service to apply, as well as a member of the forces outside his service. Sub-section (5) (a), however, provides that nothing in the section shall apply in relation to the engagement for employment by any employer of a person who is already employed by him. That means that, if the person appointed comes from inside the employer's service, it does not matter that he is not a member of the forces. Apparently the result is that if a member of the forces applies under sub-s. (2) the employer must consider in relation to all candidates for appointment or persons under consideration for appointment the matters which govern reasonable and substantial cause for not appointing a serviceman and, further, if some other competitors for the position are members of the forces, the matters specified as considerations upon which the choice between them is made. But there is this qualification, viz., if in the end he decides to appoint someone inside his service, the employer is relieved from the duty to act only on reasonable and substantial cause in appointing a man who did not serve and from the duty to proceed only on specified considerations in preferring one member of the forces to another. Section 24 contains an attempt to exclude the operation of other forms of compulsory preference where the Division applies. Sub-section (1) deals with the exclusion of requirements depending on Federal law. It says that the provisions of the Division shall apply to the exclusion of any provisions providing for preference in any matter relating to the employment of discharged members of the forces of any law of the Commonwealth or of any industrial award, order, determination or agreement. Sub-section (2) uses the same formula but in relation to State law. It says that the provisions of the Division shall apply to the exclusion of any provision providing for preference in any matter relating to the employment of discharged members of the forces of any law of a State or of any industrial award, order, determination or agreement made or filed under or in pursuance of any such law.

The expression "providing for preference in any matter relating to the employment of discharged members of the Forces" seems to mean "providing for preference to discharged members of the forces in any matter relating to employment." "Matter relating to employment" is much wider than "employment." It would, I imagine, cover all the incidents of employment; it looks at employment, not as mere engagement or appointment, but as a continuous relation which such incidents attend.

Now the purpose of these two sub-sections is to make certain that the regulations prescribed in Div. 2 with respect to the subject of preference to discharged servicemen in matters relating to employment shall be of general and uniform application and shall not be qualified, varied, extended or restricted by other regulations upon the same subject. The purpose includes superseding existing obligatory provisions and excluding new ones. It covers provisions of general operation, but it is manifest that the evil at which it is especially directed is particular provisions operating over a restricted area, whether the restriction be to an industry or pursuit governed by an industrial award or determination or to a State or Territory.

The subject with which Div. 2 deals is the preference of discharged members of the forces in employment, in a wider sense than mere appointment. It touches the question of preference in promotion, though, it is true, only in a limited way. The Division does so by (1) authorizing members of the forces to apply to an employer for engagement in a position not offered to them, an authority necessarily including those already in that employer's service as well as those outside (s. 27 (2)); (2) by indicating a definite decision that the preference to members of the forces shall not extend to positions filled by the promotion of someone already in the service of the employer. Further, s. 16 (3) (a), which forms part of Div. 1, may also affect promotion. For the conditions of employment made available to a man upon reinstatement must be not less favourable to him than those which would have been applicable to him in the occupation, had he remained in the employment instead of joining the forces. Such conditions may affect promotion, as, for example, where it is a condition of the employment that the order in which employees rank by way of seniority shall be given a presumptive effect by the employer in deciding upon promotion: Commissioner for Railways (N.S.W.) v. McCulloch [1] .

From the provisions of the Federal Act two things appear clearly enough. One is that the rule adopted is that in all matters of preference in employment discharged members of the forces shall stand upon an equality but that certain matters shall be considered when a choice has to be made in a competition among them for employment. The other is that the legislature decided to stop short of conferring upon members of the forces any right to be preferred if an employer fills the position for which they are candidates by appointing a man already in his employment. Upon both these matters the Victorian legislation adopts an opposite view. It discriminates among the class defined by the Federal Act under the name "members of the forces." It discriminates between those connected with Victoria as a place of enlistment or of domicile at that time and all others. It discriminates between those who served in certain theatres of war, substantially abroad, and others.

Then the Victorian Act undertakes to control promotion and to require that the serviceman should be preferred (s. 10). During the argument examples were given, said to be drawn from actual instances, which illustrate the very different consequences, both to employers and employees, of applying the Federal Act to the exclusion of the State Act, of applying the State Act to the exclusion of the Federal Act, and of applying the State Act as to promotions and otherwise applying the Federal Act.

Putting aside, however, the case of promotion for the moment, it is sufficiently obvious that with respect to reinstatement and preference in appointment the two pieces of legislation are in hopeless conflict. So much was not denied on behalf of the State of Victoria. But what was said is that the Federal Act leaves the question of promotion clear, or sufficiently clear, of statutory regulation or control and that accordingly that area is open for the operation of State legislation giving preference to any section forming part of the class called by the Federal Act "members of the forces."

There are in my opinion two independent reasons why this argument cannot be maintained. The first is that the Federal Act discloses a legislative determination by the Federal Parliament of the question what shall be the extent of the legal obligation to give preference in matters of employment; and the decision embodied in the Act is that the legal obligation shall not apply where the employer appoints a person already employed by him. Between s. 10 of the State Act, providing as it does for preference to discharged servicemen in promotion, and the Federal legislation there is consequently an inconsistency which must be fatal to the section under s. 109 of the Constitution. The second reason is that s. 10 does not stand in the State Act as an isolated provision. It is closely connected with s. 9 and, moreover, it forms part of one indivisible plan for giving preference in employment to those falling under the State definition of discharged servicemen. It is not necessary to say much in support of the first reason I have assigned. Section 24 and s. 27, the effect of which I have already described, appear to me to justify the conclusion that, on the one hand, the Federal Parliament intended to define the extent to which the duty to give preference should go and to do it so as to exclude promotion, and, that on the other hand, it intended to provide in this and other respects what would be the only rule upon the subject and so would operate uniformly and without differentiation based on locality or other conditions. In this Court it is far too late to contend that s. 109 does not invalidate State law which in such a state of affairs carries the regulation of the same matter further than the Federal legislation has decided to go. This is a case where the Federal legislation undertakes a regulation or statutory determination of the very subject and then goes on to express an intention that it shall be an exhaustive declaration of the law on that particular subject.

To legislate upon a subject exhaustively to the intent that the areas of liberty designedly left should not be closed up is, I think, an exercise of legislative authority different in kind from a bare attempt to exclude State concurrent power from a subject the Federal legislature has not effectively dealt with by regulation, control or otherwise. It is still more widely different from an attempt to limit the exercise of State legislative power so that the Commonwealth should not be consequentially affected in the ends it is pursuing. This is not a case which, in my opinion, falls within the description of legislation so powerfully attacked by Evatt J. in West v. Commissioner of Taxation (N.S.W.) [1] .

There is no doubt great difficulty in satisfactorily defining the limits of the power to legislate upon a subject exhaustively so that s. 109 will of its own force make inoperative State legislation which otherwise would add liabilities, duties, immunities, liberties, powers or rights to those which the Federal law had decided to be sufficient. But within such limits an enactment does not seem to me to be open to the objection that it is not legislation with respect to the Federal subject matter but with respect to the exercise of State legislative powers or that it trenches upon State functions. Beyond those limits no doubt there lies a debatable area where Federal laws may be found that seem to be aimed rather at preventing State legislative action than dealing with a subject matter assigned to the Commonwealth Parliament.

But I think that Div. 2 of Part II. of the Federal Act is well within the line.

I turn now to the second reason I gave for rejecting the contention that s. 10 of the State Act stood as a valid, though isolated, regulation of preference in promotion. That reason depends upon the view that s. 10 is an inseparable part of a State plan that must stand or fall as a whole.

Now an inspection of s. 10 will show that the draftsman considered that its operation might overlap with that of s. 9. For, by sub-s. (3) of s. 10 he provided that sub-s. (2) should not apply in the case of a promotion made in accordance with s. 9. Under s. 9 (1) an employer may by public advertisement invite applications for appointment to a position. If he gets an application from a person falling within the State definition of discharged serviceman he is bound to appoint him, if he is outside his service, or promote him, if he is within it. If he gets no such application he may appoint or promote, as the case may be, a man who has not served. In each case the appointment or promotion is final. But s. 10 (2) says that an employer, unless he has invited applications only from persons in his employment, may not appoint or promote a man who has not served except provisionally. His appointment or promotion must be provisional upon no serviceman making an application for the same position within seven days. Then sub-s. (3) qualifies that by saying, in effect, that the appointment may be final and not provisional if it is made in accordance with s. 9. Further, s. 9 excepts from its obligations an employer appointing casual or temporary employees. It may be that the words "in accordance with" in s. 9 were meant to cover these appointments too.

Be that as it may, there is enough to show that s. 10 on its own terms needs s. 9, unless its intended operation is to be enlarged. Moreover, in point of policy s. 9 (preference to servicemen in reference to appointments by engaging outside men or promoting men already employed) is closely tied to s. 10 (preference to servicemen in promotion). Section 9, however, is confessedly inconsistent with the Federal Act. In my opinion s. 10 must fall with it.

This conclusion perhaps may be considered to involve a view of the words in s. 109 "to the extent of the inconsistency" which I should not merely assume. But if it does, the next matter to which I shall now pass more distinctly involves the application of those words and provides a better illustration of my opinion. I refer to the question whether s. 4 must necessarily fail with ss. 7, 9 and 10.

In my opinion it should do so because on its face it means only to apply to the Crown provisions which it assumes to apply to all other employers. It is based entirely on the assumption that all Victorian employers will be bound by provisions which include ss. 7, 9 and 10, and, on that footing and only on that footing, it provides means for bringing the Crown under them. It would be absurd to suppose that s. 4 was meant to enact a separate law about preference for the Victorian public service, a law depending upon the incorporation of provisions intended to operate generally, notwithstanding that they proved invalid. But as to this conclusion it is said that the invalidity springs from s. 109 and that that section invalidates legislation only to the extent of the inconsistency. Adopting the view, as I do, that it is unnecessary to pass upon the validity of s. 26 of the Federal Act, which purports to apply Div. 2 of Part II. to the Crown in right of the State, I must assume for the purpose of the decision that the Division does not bind the State. On that assumption it may be asked how does the inconsistency extend to s. 10 of the State Act. The answer is that while s. 109 invalidates State legislation only so far as it is inconsistent, the question whether one provision of a State Act can have any operation apart from some other provision contained in the Act must depend upon the intention of the State legislation, ascertained by interpreting the statute. The same thing is put in another way by saying that every part of a completely interdependent and inseparable legislative provision must fall within "the extent of the inconsistency." No doubt s. 109 means a separation to be made of the inconsistent parts from the consistent parts of a State law. But it does not intend the separation to be made where division is only possible at the cost of producing provisions which the State Parliament never intended to enact. The burden of establishing interdependence in such a case is necessarily upon those who assert it in view of the words of s. 109, and perhaps it is not a light one. That is why the State Acts Interpretation Act 1930 is unimportant, even if upon its terms it applies to a case under s. 109.

For these reasons I am of opinion that ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 of Victoria are invalid. As to ss. 4, 9 and 10 the plaintiff is entitled to a declaration to that effect.