Queen Victoria Memorial Hospital v Thornton

[1953] HCA 11

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144 HIGH c o u i r r

[1953.

[H IG H COURT OF AUSTRALIA.]

THE

QUEEN VICTORIA M EMORIAL\

H O S P I T A L ............................................. f

P l a i n t i f f

AND

THORNTON . D e f e n d a n t .

H.C. OF A. Federal Judiciary.—Judicial power—Investing Stale courts with Federal jurisdiction

1953. — VommonweaUh Act conferring power to determine preference in employment

as between persons entitled to gmeference— Validity— The Constitution (63 & 64

Me l b o u r n e ,

Viet. c. 12), ss. 51 [xxxix.), 77 {Hi.)—Re-establishment and Employment Act

March 4, 5.

1945-1952 (Ad . 11 o f 194.5—Â o, 89 of 1952), ss. 27 (4), 28.

Sy d n e y ,

Section 27 (4) of the Re-establishment and, Employment Act 1945-1952

A p ril 1.])rovides, in substance, th a t, in determ ining as between two or more persons

Dixon C.J., entitled to jjroforenco (as delined by the Act) who are applicants for engage­

McTierium, m ent in omjrloyment which of those persons shall be engaged in employment,

Williams,

Webb. an emjjloyer shall consider the comparative^ cjualification.s of those persons

Fullagar,

K itto and and also certain m atters referi’ed to in s. 27 (3) which are

(a) the length,

Taylor J J .

locality and nature of the service of th a t person ; (c) the qualifications required for the jjerformance of the duties of the position ; (d) the procedure (if any) jjrovided by law for engaging persons for employment in the position ; and (e) any other relevant m atters. Section 28 of the Act is in the following term s : “ (L Where any person whom an employer has refused to engage in em])Io3'mcnt considers tha t, having regard to the provisions of the la.st preceding section, the emplojmr should have engaged him in employment, th a t ])erson m ay apply’ to a court of sum m ary juristliction constituted by a Police, Stipendiary or SjJecial M agistrate for an order under this section. (2) On the hearing of the apiilication, the court shall have regard to the m atters specified in sub-section (3) or sub-section (4) (whichever is applicable) of the last ])receding section and shall make such order as it thinks just and reasonable in the circumstances. (3) The court shall not, on the hearing of the api)lication, make an order directing an em])lo3’er to engage a person in emjdoyment in an,y ])osition if the court is satisfied th a t tha t person— (a) would be unable to perform the duties of the jiosition by reason of lack of skill or !i reasonable degree of efficiency ; (b) is physically or mentally unfit to perform the duties of the position ; or (c) has, .since the termination

87 C.L.R.] OF AUSTRALIA.

145

of his service, been convicted of an offence of such a na tu re th a t he is un­

H . C. OF A.

suitable for engagem ent in th a t em ploym ent. (4) E.vcept a.s provided by the

1953.

ne.vt succeeding section, the decision of the court shall be final and conclusive ” .

—'

QuEEiNf

Held th a t s. 28, in its a])plication to s. 27 (4), does no t confer judicial ])ower,

V ictoria

M em orial H ospital

and is, accordingly, not au thorised by .s. 77 (iii.) of the C onstitution and is

invalid.

V.

T h o r n to n .

D e m u r r e r .

The Queen Victoria Memorial Hospital, a hospital duly incor­ porated pursuant to the provisions of the Hospitals and Charities Act 1948 (Viet.), comiUienced an action in the High Court of Australia against Mary Thornton (otherwise known as Mary Kent Hughes). The statement of claim was, so far as is relevant, as follows ;

2. The defendant is a legally qualified medical practitioner carrying on practice in Melbourne in the State of Victoria.

3. By a letter dated 1st September 1952 from the defendant to the plaintiff the defendant applied for employment by the plaintiff as a radiologist in the plaintiff’s radiological clinic.

4. During the month of August 1952 the plaintiff agreed to employ one J. Hamilton Smith, a legally cjualified medical practi­ tioner, 8,s a radiologist in the said clinic such employment to com­ mence as from the end of the month of September 1952.

5. Both the defendant and the said J. Hamilton Smith are and have been at all times material persons entitled to preference within the meaning of the Re-establishment and Emfloyment Act 1945 (Cth.) and more particularly s. 25 thereof.

8. The plaintiff refused to engage the defendant as a radiologist and on 24th October 1952 the defendant purporting to act under s. 28 of Act No. 11 of 1945 and s. 5 of the Re-establishment and Employment Act 1952 applied to the Court of Petty Sessions at Melbourne constituted by a stipendiary magistrate for an order directing the plaintiff to employ the defendant in preference to the said J. Hamilton Smith.

9. On 10th December 1952 one Harold Jackson a stipendiary magistrate sitting in the said Court of Petty Sessions after hearing evidence called by the plaintiff and the defendant purported to order the plaintiff to employ the defendant as a radiologist in place of the said J. Hamilton Smith within fourteen days of the making of the said order.

12. The plaintiff desires to employ the said J. Hamilton Smith and does not desire to employ the defendant as radiologist or at all. 13. The provisions of ss. 27 and 28 of the Act of 1945 and more particularly the provisions of the said sections relating to competing

VOL.

L X X X V I I . -

140 HIGH COURT

[1953.

H. ('. OF A. .'ipplicjitions for oniployniont hy persons entitled to preference

195,'!.are beyond the legislative power of the Parliament of the Common-

QinoKN Avealth as (ionfei'red by the Constitution of the Commonwealth

N' i c t o i u a a.nd in pa.rticular the power so conferred by s. 51 (vi.) of the Con-

iM KMOKIAF

i [ ( )S l> lT A L

stitrition and are invalid.

r.

A tuI the ])laintiff claims :

I ' l l O K N T O N .

1. A declara-tion that ss. 27 and 28 of the Re-establishment and Employment Act 1945 so far as the same apply to competing appli­ cations for employment by persons entitled to preference within the meaning of the said Act are beyond the legislative power of the Parliament of the Commonwealth and are invalid.

2. A declaration that s. 5 of the Re-estahlishment and Employment Act 1952 so far as it purports to extend the period of the operation of the provisions of ss. 27 and 28 of the Re-establishment a'nd Employ­ ment Act 1945 relating to competing applications for employment by persons entitled to preference within the meaning of the said Act is beyond the legislative power of the Parliament of the Commonwealth and is invalid.

The defendant after admitting the allegations contained in pars. 2, 4, 5, 8, 9, 12 of the statement of claim demurred to the Avhole thereof on the ground that ss. 27 and 28 of the Re-establishment and Employment Act 1945 and s. 5 of the Re-establishment and Employment Act 1952 were at all material times valid.

R. AI. Eggleston Q.C. (with him B. L. Alurray), for the plaintiff. Under s. 27 (4) of the Re-estahlishment and Employment Act 1945­ 1952 an employer is required merely to consider certain matters. He is not required to take any action following his consideration of those matters. Section 28 (2) requires the court to have regard to various matters, and then to make “ such order as it thinks just and reasonable in the circumstances ”. The court does not declare rights which previously existed, but it makes rights. Consequently, its power is of an administrative nature and not part of the judicial power of the Commonwealth. There is no poAver in the Common­ wealth legislature to confer administrative poAAnrs upon a State judicial tribunal. The position might be different if the magistrate were persona designata, but this legislation is addressed to courts of summary jurisdiction as such.

J. B. Tait Q.C. (AAuth him Eric E. Heivitt), for the defendant. The court under s. 28 of the Re-establishment and Eynployment Act 1945-1952 exercises not administrative but judicial power. I t is not at large but is limited by s. 28 (2) and by the Act generally.

87 C.L.R..] OF AUSTRALIA.

147

[He referred to Federal Council of the British Medical Association H. C. or A.

in Australia v. Commonwealth (1) per Latham O.J. ; Peacock v. 1953.

Newtmim MarrickviUe and General Co-operative Biiilding Bociety

Q u REN

No. 4 Ltd. (2) per Ijatham C'.J. ; R. v. Bevan ; Ex parte Elias and

V rCTOHIA

AI EMOKrAL IfOSPITAL

Gordon (3) per Btarke J.]

V.

R. M. Eyyleston Q.C., in reply.

T hornto n .

Cur. adv. vult.

April

T h e C o u r t delivered the fo l lo w in g written

judgment :—

Thi.s is a demurrer to a statement of claim which seeks a declara­ tion that ss. 27 and 28 of the Re-estahlishment and Employment Act 1945-1952 are invalid in so far as they apply to persons entitled to preference who compete for employment. I t also seeks a declara­ tion that s. 5 of the Re-establishment and Employment Act 1952 is void so far as it purports to extend the period of operation of the foregoing sections in their relation to such persons.

The ydaintiff is a hospital incorporated under the Hospitals and Charities Act 1948 (Viet.) and the defendant is a legally qualified medical practitioner in the State of Victoria who is a “ person entitled to preference ” within the meaning of the Re-establishment and Emplcn/ment Act 1945. She served, according to the allegation in the statement of claim, wdth the rank of major in the Royal Army Medical Corps from the month of April 1940 until the month of November 1942. Apparently a position of radiologist in the plaintiff’s Radiological Clinic fell vacant. The plaintiff hospital agreed to employ a legally qualified medical practitioner named J. Hamilton Smith as a radiologist as from the end of September

1952. Refore the end of September 1952, it would seem on 15th August 1952, seven years from the end of hostilities in the war commencing on 3rd September 1939 had expired. Section 34 of the Re-estahlishment ami Employment Act 1945 provides that ss. 24 to 33, inclusive, of that Act should cease to operate at the expiration of seven years after the cessation of hostilities. But on 18th November 1952 the Re-estahlish/ment and Employment Act 1952 w'as as.sented to. Section 5 of that Act substitutes the w'ord “ ten ” for “ seven ” in s. 34 of the Act of 1945. Section 2 provides that the Act of 1952 shall be deemed to have come into operation on the third day of September 1952. Accordingly, as from 18th November, or possibly as from IGth December (see

( 1 ) (1!)49) 79 C.L.R. 20J, a t j<p.

(3) (1942) 06 ('.L .R . 452, a t j)p. 466,

235, 23fi.

467.

(2) (1943) 07 C.L.R. 25, a t {ip. 34,

35, 36.

.148 HIGH COURT

11953.

H . ('. OK A.

s. 5 (1a) of the Acts Interpretation Act 1901-1950) the operation

of Hs. 24 to 33 revived as from 3rd September 1952.

Qr 10 KK In the iiuTiiitime, namely on 1st September 1952, the defendant

\'IOTOK1.\had applii'd in writing to the plaintiff Jiospital for employment as

M k .m o u i .m .

a radiologist in its Radiological Clinic. Apparently the application

r.

in writing had been preceded by an attem pt on the part of the

' I ' h OKN TON.

chdendant to oiitain the afipointrnent; at all events so we were

informed from the Bar.

^ I c T i c n i a i i . J.

Williams

J .

\Vol)i) .1. Section 27 of the Re-establishment and, Employment Act 1945­

l''iillagar J.

1952 contains provisions giving persons entitled to preference a

K it to

,1.

Taylor .).conditional right to be engaged by an employer in preference to

any other person unless the employer has reasonable and substan­ tial cause for not engaging him. A “ person entitled to preference ’’ is defined by s. 25 to mean a member of the forces who has been discharged or is awaiting discharge, and a person registered under s. 32 of the Act. Section 32 empowers a Central or Regional Preference Board to register persons not otherwise entitled to the benefits of Division 2 of Part II, where these provisions occur, if, having regard to the service performed by them in relation to the war, the board thinks fit to do so. Section 25 defines “ member of the Forces ” to include a person who was, at any time during the war commencing on 4th August 1914 engaged on continuous full­ time service as a member of the Defence Force or Army Medical Corps Nursing Service, and s. 4 contains a very long definition of “ member of the Forces ” based upon the war commencing on 3rd September 1939. Both the defendant and Dr. Hamilton Smith come within this definition. Section 27 (2) provides that any person entitled to preference may apply in writing to the employer concerned to be engaged for employment in any position notwuth- standing that employment in the position has not been offered to him. Sub-section (3) provides what, in determining whether reason­ able and substantial cause exists for not engaging in employment a person entitled to preference, an employer concerned must consider. The provisions of s. 27 which so far have been mentioned relate to the preference of a person entitled to preference when the question is between that person and an applicant or applicants for employment who fall outside the definition. They therefore do not apply to the question whether the Hospital Board was obliged to appoint the defendant and not Dr. Hamilton Smith to the post of radiologist. The provision of s. 27 which purports to deal with such a matter is sub-s. (4). Sub-section (4) provides that in deter­ mining as between two or more persons entitled to preference who are applicants for engagement in employment which of those

87 C.L.R.] OF AUSTRALIA.

149

persons shall be engaged in employment the employer shall consider

H . C. OF A.

the matters referred to in the preceding sub-section and the com­19.53.

parative cpialitications of those persons. The matters referred to

Q u een

in the preceding sub-section are :—

ViCTOEI.V Mem orial

“ (a) the length, locality and nature of the service of that person;

H o.spital

(b) the comparative qualifications of that person and of other

V.

applicants for engagement in employment in the position T h ornto n .

concerned ;

Dixon C.J. JlfT icrnan J.

(c) the qualifications required for the performance of the duties

Williams ,J.

Webb J .

of the position;Fullagar

J .

K itto J.

{d) the procedure (if any) provided by law for engaging persons

Taylor J.

for employment in the position ; and

(e) any other relevant matters ” .

Notwithstanding the defendant’s application, the plaintiff hospital appears to have determined in favour of the appointment of Dr. Hamilton Smith. The result was that the defendant resorted

to s. 28.

Section 28 is in the following terms :—

“ (1) Where any person whom an employer has refused to engage in employment considers that, having regard to the provisions of the last preceding section, the employer should have engaged him in employment, that person may apply to a court of summary jurisdiction constituted by a Police, Stipendiary or Special Magistrate for an order under this section.

(2) On the hearing of the application, the court shall have regard to the matters specified in sub-section (3) or sub-section (4) (whichever is applicable) of the last preceding section and shall make such order as it thinks just and reasonable in the circum­ stances.

(3) The court shall not, on the hearing of the application, make an order directing an employer to engage a person in employment in any position if the court is satisfied that that person—(a) would be unable to perform the duties of the position by reason of lack of skill or a reasonable degree of efficiency ;

(6) is physically or mentally unfit to perform the duties of the position ; or

(c) has, since the termination of his service, been convicted of an offence of such a nature that he is unsuitable for engagement in that employment.

(4) Except as provided by the next succeeding section, the decision of the court shall be final and conclusive ” .

The defendant applied to a Court of Petty Sessions in Melbourne constituted by a stipendiary magistrate for an order directing the

150 HIGH COURT

[1953.

H . C. OK A.plaintill hos])ital to enpiloy the defendant in preference to Dr.

IDiK}.Hamilton Smith. On lOtli December 1952 Mr. Harold Jackson,

Q uhhnS.M., sittino in a Court of Petty Sessions, after hearing evidence

V U 'T O K I A

called by the phuntiff hospital and the defendant, purported to

M ic.m o i u a l

l l o . S l ’lTALorder the ])laintilf hospital to employ the defendant a-s a radiologist

r.

in pliicc of Dr. Hamilton Smith within fourteen days of the making

T h o k n t o n .of the order. The plaintiff hospital says that it does desire to

Dixon (\,T.

employ Dr. Hamilton Smith and does not desire to employ the

HcTifniiUi,!. Williuius J .

defendant as radiologist or at all. Accordingly it brings the

Webb

Fullngar J .

present action for the purpose of obtaining relief against the order

K it to

J .

Taylor J .of Mr. Jackson and, as has already been said, bases its claim on

the contention that s. 28, so far as it relates to s. 27 (4), is void. In support of that contention four grounds were put forward. The first three were directed to establishing that the provisions could not be supported as incidental to the defence power. The fourth depended upon the contention that s. 28, at all events in so far as it related to sub-s. (4) of s. 27, purported to require a State Court to perform functions which w'-ere not within the judicial power of the Commonwealth and fell outside s. 77 of the Constitu­ tion, which enables the Parliament to make laws investing the court of a State with Federal jurisdiction.

In the view the Court takes it is sufficient to deal only A\uth the fourth ground. In questions of constitutional validity it is not desirable to go further than is required for the decision of the particular case and as the view of the Court is that s. 28 in relation to s. 27 (4) does not confer judicial power and is for that reason not justified by s. 77 and is void, it is unnecessary to express any opinion concerning .the first three grounds relied upon by the plaintiff. A¥hat s. 28 (1) appears to attempt is to invest a State court of summary jurisdiction Avith a power which may be briefly described as that of making an appointment in substitution for the appointment made by an employer. This is not a case calling for any examination of the precise limits of judicial power. I t is enough to refer to Shell Co. of Australia v. Federal Commis­ sioner of Taxation (1) ; British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (2) ; Rola Co. {Australia) Pty. JAd. v. Commonwealth (3) ; Silk Bros. Pty. Ltd. v. State Electricity Com­ mission of Victoria (4) ; Peacock v. Newtown MarrickviUe and General Co-operative Building Society No. 4 Ltd. (5).

(1) (]9:n) A .C.275; (1930) 4 4 C.L.R.

(3) (1944) 69 C.L.R. 185.

530.(4) (1943) 67 C.L.R. 1.

(2) (1925) 35 C.L.R. 422 ; (1926) 3S

(5) (1943) 67 C.L.R. 25.

C.L.R. 153.

87 C.L.R.] OF AUSTRALIA.

151

H . C. OF A.

In relation to s. 27 (4) a court of summary jurisdiction constituted by a magistrate has a discretion which is complete except that he

1953.

is to be under a duty to consider the matters referred to in sub-s. Qu e e n

(3) {a) to (e). So long as the court takes them into account it

V ic to r ia

Mem orial H ospital

may do as it thinks fit in making the appointment.

No antecedent

rights exist in any of the persons concerned which the court of

V.

summary jurisdiction is called upon to ascertain, examine or T h o r n to n .

enforce. There is no issue of fact submitted to it for decision.

Dixon C.J. MoTiernan J.

Its function appears to be entirely administrative and to differ

Williams J .

Webb J.

in no respect from the function of the employer himself in con­

Fullagar J .

K itto

J .

sidering applications for employment which are affected by s. 27 (4). Taylor

J .

Many functions perhaps may be committed to a court which axe not themselves exclusively judicial, that is to say which considered independently might belong to an administrator. But that is because they are not independent functions but form incidents in the exercise of strictly judicial powers. Here there is nothing but an authority which clearly is administrative.

A difficulty may exist in construing the expression “ any person whom an employer has refused to engage in employment What classes of persons it covers may be a question in a case that arises under s. 27 (1). But there is no such question with reference to s. 27 (4). The persons concerned must be servicemen. I t is of course possible that in a given case both s. 27 (1) and s. 27 (4) may be involved. But that is a matter which may be left out of account for the purpose in hand. I t is sufficient to say that .when a case arising under s. 27 (4) is made the subject of a purported application under s. 28 (1) a court of summary jurisdiction is called upon to perform a function which surely is of a non-judicial character. Section 77 of the Constitution expresses a power conferred upon the Parliament to invest the courts of a State with Federal juris­ diction. I t enables the Parliament to define the extent to which the jurisdiction of a Federal court shall be exclusive of that which belongs to or is invested in the courts of a State. Section 79 empowers the Parliament to prescribe the number of judges by which the Federal jurisdiction of any court may be exercised. On the assumption that s. 51 (xxxix.) applies to Federal jurisdiction vested in State courts it would doubtless give the Parliament power to legislate in respect of some matters which are incidental to the exercise of that jurisdiction : cf. Le Mesurier v. Connor (1). The power to impose duties upon State courts or to invest them with Federal functions is defined by these provisions. “ There

(1) (1929) 42 C.L.R. 481, a t p. 498.

152 h k ; h c o u r t

[1953.

i f . ( ' .

OK

is no provision in the Constil iition whicli enables the Common- weii.ltli I’a,r1i;unent to re([uir(; State courts to exercise any form of (i)u KKN non-judicial power ” : per Latham C.J., Federal Council ofth,e British

\'l('TOHIA

Medical Association in Australia v. The Cowmomvealth (I). It would

■M

lOlOK I Al.

11 0.'-:PI'l'AI,be stra.iigc ̂ iiubu'd if tlu' Constitution contained a grant of legislative

r.

))ower which would eiudale tlie Parliament to require or to authorise

T l l o l t N T O N .State courts :is such to exec-utc duties, functions or powers which

Dixon

were not jndicia.l. “ Sec. 77 of the Comnionwealth Constitution

Mr ' l ' i i ' l ' l i . i i l . ) .

W i l l i n i n s

\Vol)b ,1. expressly confers upo)i the Parliament power to make laws investing

KulInHiU- ,1.

the Courts of the States with Federal jurisdiction. But the pro­

K i l t o

,1.

Taa Ioi' ,1.visions of sec. 77 and sec. 79, which explicitly give legislative piower

to the Commonwealth in respect of State Courts, make it plain that the general powers of the Parliament to legislate with respect to the subjects contided to it, like the similar powers of Congress, must not be interpreted as authorizing legislation giving jurisdiction to State Courts ” : Le Mesurier v. Connor (2).

I t is to be noticed that s. 28 (1) of the Re-establishment and Firiployment Act does not take any magistrate as a designate pjerson or as a person who with his own consent and that of the State, may be detached from the court to which he belongs and used for particular purposes. I t is addressed to the court of summary jurisdiction as such. Just as under s. 39 (2) (d) of the Judiciary Act 1903-1950 it is provided that the Federal jurisdiction of a court of summary jurisdiction of a State shall not be exercised judicially except by a stipendiary or police or special magistrate or some magistrate of the State specially authorised by the Governor- General, so does s. 28 provide that the court must be constituted by a police, stipendiary or special magistrate w’hen the court of summary jurisdiction makes an order under that section. Whether the power to enact s. 39 (2) (d) of the Judiciary Act arises under s. 51 (xxxix.) of the Constitution or under s. 79 need not be con­ sidered, for the validity of the provision has been upheld : Baxter V . Commissioners o f Taxation, AbSI.IF. (3) ; Lorenzo v. Carey (4) ; Commonwealth v. Limerich Steamship Co. Ltd. (5). All that matters here is that s. 28 attempts to invest the State court of summary jurisdiction, and not an individual, with a non-judicial power.

In matters of validity we ought not to go beyond what the case recpiires, and for that reason it is better to confine our decision to s. 28 (1) as it is actually expressed in its application to s. 27 (4).

(1) (1949) 79 C.L.R. 201, a t p. 23(i.(4) (1921) 29 C.L.R. 243.

(2) (1929) 42 C.L.R., a t p. 496.(5) (1924) 3.5 C.L.R. 69.

(.3) (1907) 4 C.L.R. 10S7.

87 C.L.R.] OF AUSTRALIA.

153

So confining it, it is enough to say that s. 28 in its application to H . C. of A.

s. 27 (4) is void.

1953.

I t follows that the plaintiff’s claim in this action has been madeJ-

f / T T F F N T

out and tha t the demurrer to the statement of claim should be V ictoria

overruled.

M em orial

Order that the demurrer to the statement of

v.

claim be overruled.

T h o r n to n .

Solicitors for the plaintiff, J . M. Smith & Emmerton.

Solicitor for the defendant, G. J. Fyfe of Legal Service Bureau.

R. D. B.