Wenn v A-G

Wenn v A-G - [1948] HCA 13 - HCA 1948 case summary — Zoe

[27]

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.

[36]

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.

[47]

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)).

[48]

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.

[63]

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.

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Judgment (64 paragraphs)

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