Wenn v Attorney-General (Vict)

The case of *Wenn v Attorney-General (Vict)* concerned a dispute over the application of Commonwealth and State legislation regarding the employment of discharged servicemen. The plaintiff, Lionel Charles Wenn, a member of the Victorian Public Service, sought a declaration that the *Discharged Servicemen's Preference Act 1943* (Vict.) did not apply to promotions within the Victorian Public Service. This was because he was not a discharged serviceman and had been denied promotion on the grounds that the Victorian Act mandated preference for discharged servicemen. The Attorney-General for Victoria contended that the State Act was valid and not inconsistent with the Commonwealth's *Re-establishment and Employment Act 1945*. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether section 10 of the *Discharged Servicemen's Preference Act 1943* (Vict.), which provided for preference in promotion to discharged servicemen, was rendered invalid by section 109 of the Constitution due to inconsistency with the Commonwealth's *Re-establishment and Employment Act 1945*. This involved determining whether the Commonwealth Act occupied the legislative field concerning preference in employment for discharged servicemen to such an extent that it excluded the operation of the Victorian Act, particularly in relation to promotions within the State Public Service. The Court also considered whether the Commonwealth Parliament had the constitutional power, under the defence power, to legislate with respect to the employment of State public servants in this manner.

A majority of the High Court, comprising Latham C.J., Rich, Dixon, and McTiernan JJ., held that section 10 of the Victorian Act was inconsistent with the Commonwealth Act and therefore invalid under section 109 of the Constitution. The Court reasoned that the Commonwealth Act evinced an intention to create a uniform national scheme for the preference in employment of discharged members of the Forces, and that this scheme was intended to apply to the exclusion of any State laws on the same subject. Specifically, the Court found that the Commonwealth Act, particularly through sections 24 and 27, occupied the field of preference in employment, including promotions, and that the Victorian Act's provisions for preference in promotion were in conflict with this Commonwealth scheme. Latham C.J. and McTiernan J. also affirmed the validity of the Commonwealth Act's application to State Crown employment under the defence power, finding it did not unduly interfere with State governmental functions. Rich and Dixon JJ. concluded that the Victorian Act was an inseparable plan that conflicted with the Commonwealth Act, rendering section 10 invalid.

The High Court declared that section 10 of the *Discharged Servicemen's Preference Act 1943* (Vict.) was inconsistent with the *Re-establishment and Employment Act 1945* (Cth) and was therefore invalid by virtue of section 109 of the Constitution. Consequently, the plaintiff was not subject to the preference provisions of the Victorian Act in his application for promotion.