Constitutional Law (Cth)—State Act inconsistent with subsequent Commonwealth Act—State Act "invalid to the extent of the inconsistency"—Revival of State Act upon expiration of Commonwealth Act—The Constitution (63 &64 Vict. c. 12), s. 109—Re-establishment and Employment Act 1945 (Cth), Pt II, Div. 2—Discharged Servicemen's Preference Act 1943 (Vict.), ss. 4, 7, 9, 10. Statutes—Implied repeal—Later State Act passed while earlier State Act inoperative—Preference to discharged servicemen—Promotion—Public Service—Maxim generalia specialibus non derogant—Discharged Servicemen's Preference Act 1943 (Vict.), ss. 3, 4, 10—Public Service Act 1946 (Vict.), s. 32—Public Service Act 1958 (Vict.), s. 32.
Decisions
1961, June 2. The following written judgements were delivered:- FULLAGAR J. This is a demurrer to the statement of claim in an action brought in this Court. The plaintiff is a member of the Public Service of the State of Victoria, and a "discharged serviceman" within the meaning of the Discharged Servicemen's Preference Act 1943 (Vict.), which I will call "the Preference Act". He claims that he was in May 1959, and still is, entitled to certain rights given by that Act to discharged servicemen. The demurrer raises two questions of law, but before stating these it is convenient to refer briefly to the relevant statutes and decisions. (at p273)
2. The Preference Act came into force by proclamation on 21st March 1944. Section 4 provided that (inter alia) ss. 7, 9 and 10 should apply in respect of employment by the Crown in right of the State of Victoria. Section 7 required an employer to reinstate in his employment a discharged serviceman who applied for reinstatement. Sections 9 and 10 required an employer in making appointments and promotions to give preference to a "suitable and competent" discharged serviceman who applied for appointment or promotion. On 27th August 1945 the Re-establishment and Employment Act 1945 (Cth) came into force by proclamation. Part II of this Act, which was expressed to apply to the Crown in right of a State as well as to private employers, dealt with the same subject-matter as the Victorian Preference Act. In Wenn v. Attorney-General (Vict.) (1948) 77 CLR 84 it was held that ss. 4, 7, 9 and 10 of the Victorian Act were inconsistent, within the meaning of s. 109 of the Constitution, with the provisions of Pt II of the Commonwealth Act, and were therefore invalid. Wenn's Case (1948) 77 CLR 84 was decided on 20th August 1948. The Commonwealth Act had, of course, been enacted as an exercise of the defence power, and on 16th April 1959 this Court decided in The Illawarra District County Council v. Wickham (1959) 101 CLR 467 that Pt II thereof could no longer be supported as an exercise of that power. It was never suggested that it could be supported under any other constitutional power. It follows from Wickham's Case (1959) 101 CLR 467
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Butler v Attorney-General (Vic) [1961] HCA 32
Case
[1961] HCA 32
Decision Date
CaseChat Overview and Summary
The case of *Butler v Attorney-General (Vic)* concerned a dispute between the applicant, Butler, and the Attorney-General for Victoria. The precise nature of the dispute is not detailed in the provided text, but it involved a matter brought before the High Court of Australia, with judgment delivered by a bench comprising Fullagar, Kitto, Taylor, Menzies, and Windeyer JJ.
The central legal issues before the High Court revolved around the interpretation and application of certain provisions of Victorian legislation. Specifically, the court was tasked with determining the scope of these provisions and their effect in relation to the applicant's circumstances. The precise legislative provisions and the specific legal questions arising from them are not elaborated upon in the provided text.
The reasoning of the High Court, as delivered by the five justices, would have involved a careful analysis of the relevant statutory language, potentially considering extrinsic materials and established principles of statutory interpretation. The court would have applied these principles to the facts of the case to arrive at its determination on the legal issues presented. The outcome of this analysis would have dictated the court's final orders.