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High Court of Australia |
THE ILLAWARRA DISTRICT COUNTY COUNCIL v. WICKHAM [1959] HCA 18; (1959) 101 CLR 467
Constitutional Law (Cth)
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5), Menzies(6) and
Windeyer(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Defence - Re-establishment and employment - Discharged service personnel - Registered persons - Preference in employment - Obligation on employer to employ persons entitled to preference before other persons - Provision for application to prescribed authority by persons entitled to preference for direction to employer to employ - Validity of provision in thirteenth year after cessation of hostilities - The Constitution (63 & 64 Vict. c. 12), s. 51 (vi.) - Re-establishment and Employment Act 1945-1956, Pt. II Div. 2, ss. 27, 28 - Re-establishment and Employment Act 1955 (No. 56 of 1955), s. 3 (1) - Re-establishment and Employment Act 1958(No. 52 of 1958), s. 3.
HEARING
Sydney, 1958, December 15, 16;DECISION
April 16, 1959.McTIERNAN J. I am of opinion that in March 1958, when the defendant, Wickham, asserted his right to "preference", Div. 2 of Pt. II of the Re-establishment and Employment Act 1945-1956 had ceased to have any valid operation in respect of each of the three classes of persons which the Act originally brought within Div. 2, at any rate, so far as private employment and State and municipal employment within the States are concerned. (at p476)
2. Division 2 was originally enacted for a period of seven years (s.34). This period was extended to ten (10) years by s. 5 of Act No. 89 of 1952. A further extension to 2nd September 1958 was made by s. 3 of Act No. 56 of 1955. Ultimately, s. 3 of Act No. 52 of 1958 fixed 30th June 1960 as the date on which Parliament intended Div. 2 to end. In the view which I have taken, it is not necessary to consider whether Div. 2 was invalid in any respect ab initio, and I raise no question whether, if it were wholly valid when enacted, it was beyond the legislative power of the Parliament to enact it for a period of seven years, or to prolong that period by three years. (at p476)
3. Presumably, when Parliament passed the Act of 1955, extending Div. 2 for three years, so that it would expire on 2nd September 1958, it took the view that persons entitled to "preference" would continue to stand in need of such aid because of the continuance of the emergency resulting from demobilization and the discharge of persons who had been engaged in war service. But the view of the Parliament on a question such as this is not, of course, binding on the Court in an action for relief against Div. 2 on the ground that there is no legislative power capable of sustaining it. I feel that before the Court should accept the view of Parliament, the Court should, because of the lapse of time from the first occurrence of the emergency, be clear that an emergency created by the discharge of persons from the Army and from war service still existed in the employment field, and that therefore the reasons for conferring upon discharged personnel the benefit of "preference" had not ceased to exist. It is a matter of common knowledge that even before the original period of seven years had expired, a state of affairs in relation to employment was developing, in which, generally speaking, employment was not difficult to obtain, and the Australian labour force had to be increased by immigration. I think that, at any rate, at the end of ten years from the commencement of Div. 2 if not before, the conditions in Australia were not such as would sustain an exertion of the legislative powers on the basis that a post-war situation still existed in the field of employment, due to demobilization, and the discharge of persons from war service. (at p477)
4. It was argued that Div. 2 could be supported upon the basis that it is legislation other than a set of measures passed to cope with problems arising from demobilization and the discharge of soldiers and others from war service. The basis was that it is within the scope of the defence power, even as it stands in peace time, to reward war service by granting to persons who served in war civil rights such as those provided in Div. 2, in order to encourage recruiting for the armed Forces in any future emergency. I am of opinion that the pith and substance of Div. 2 is employment and the engagement of persons in employment. Such subject matter is not within any of the powers which are vested in the Parliament of the Commonwealth by s. 51 of the Constitution. As a law operating after the transitional period between war and the advent of peace-time conditions, it is not a good law with respect to defence. The Commonwealth, of course, has power to grant rewards for war service out of its own bounty and to make such a scheme of preference as that in question apply in the engagement of persons for employment which is within its control, or with respect to which the Parliament has power to make laws. But war service cannot, in my opinion, be used in peace time as a foothold for enacting such provisions as are contained in Div. 2 in relation to private employment in a State (not a Territory) or to employment by a State or public authority of a State or a municipality. They are essentially laws on the topic of employment, not defence. I would overrule the demurrer. (at p477)
FULLAGAR J. This is a demurrer to the statement of claim in an action in this Court, in which the plaintiff council claims a declaration that Div. 2 of Pt. II of the Re-establishment and Employment Act 1945-1956 is not a valid law of the Commonwealth. Consequential relief by way of an injunction is also claimed. (at p477)
2. The matter arises in this way. The office of county clerk of the plaintiff council being vacant, the defendant Wickham on 17th February 1958 applied to the plaintiff for employment in that office. On the same day one Claude Hunt also applied for employment in that office. The plaintiff refused to engage Wickham, and did engage Hunt. The case was argued on the footing that Wickham was, and that Hunt was not, a "person entitled to preference" within the meaning of the Commonwealth Act. On 11th March 1958 Wickham applied to the second defendant, Mr. Jack Fleeman, a magistrate and a "prescribed authority" under s. 28 of the Act, for an order giving effect to his alleged right to preference over Hunt. The application came on for hearing at Wollongong on 21st April 1958, and was adjourned to 24th June 1958. On 12th June 1958 the council commenced its action. (at p478)
3. The Re-establishment and Employment Act 1945 was assented to on 28th June 1945, and came into force by virtue of a proclamation on 27th August 1945. It was passed, of course, to deal with the situation arising at the conclusion of the war in which Australia had been engaged since September 1939, and in particular with problems created by the discharge and return to civilian life of large numbers of men and women who had been serving in the Naval, Military and Air Forces. It made provision for a large number of matters, such as vocational training, the treatment and financial assistance of disabled persons, housing, settlement on the land, and so on. Part II was headed "Provisions relating to Employment", and Div. 2 of Pt. II (with the provisions of which we are immediately concerned" was headed "Preference in Employment". Division 2 of Pt. II consisted of ss. 23-34 inclusive. Section 34 provided that Div. 2 should "cease to operate at the expiration of seven years after the cessation of hostilities in all the wars in which His Majesty was engaged at the date of the commencement of this Division." Section 34 was amended by s. 5 of Act No. 89 of 1952, which provided that the words "ten years" should be substituted for the words "seven years". It was repealed, and a new s. 34 inserted by s. 3 of Act No. 56 of 1955. The new section provided that Div. 2 "should cease to be in operation at midnight on 2nd September 1958". Finally, by s. 3 of Act No. 52 of 1958, which came into force on 1st October 1958, it was provided that Div. 2 should "cease to be in operation at midnight on 30th June 1960." Section 2 (2) of the Act of 1958 provided that s. 3 should be deemed to have come into operation on 2nd September 1958. (at p478)
4. Section 4 (1) of the Act contains a long definition of the term "member of the Forces" by reference to service during the war which commenced on 3rd September 1939. For the purposes of Div. 2 of Pt. II this definition is extended by s. 25 to include certain persons who served in the war which commenced on 4th August 1914. This extension could conceivably have the result that Pt. II was invalid ab initio, but, in the view which I take, it is not necessary to consider this question. Section 25 also contains a definition of the term "person entitled to preference". It provides, so far as material, that that term means "a member of the Forces who has been discharged or is awaiting discharge". For present purposes s. 27 is the important section. The first three sub-sections only need be set out. These are as follows: - "(1) 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. (2) 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 the position has not been offered to him. (3) In determining whether reasonable and substantial cause exists for not engaging in employment a person entitled to preference, the employer concerned shall consider - (a) the length, locality and nature of the service of that person; (b) the comparative qualifications of that person and of other applicants for engagement in employment in the position concerned; (c) the qualifications required for the performance of the duties of the position; (d) the procedure (if any) provided by law for engaging persons for employment in the position; and (e) any other relevant matters." Section 28 is designed to provide a means of enforcing the provisions of s. 27. The original s. 28 was repealed, and a somewhat different provision substituted, by Act No. 90 of 1953, which also amended s. 33. These amendments were made in consequence of the decision of this Court in Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144 . The new section gives to a person whom an employer has refused to engage in employment a right to apply to a "prescribed authority", who "may make such order as he thinks just and reasonable in the circumstances". Sub-section (3) provides: - "The prescribed authority shall not, on the hearing of the application, make an order directing an employer to engage a person in employment in a position if the authority 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; (b) 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." Section 33 makes it an offence to fail to comply with any provision of the Act or with any order made under s. 28. (at p479)
5. Mr. Holmes contended that Div. 2 of Pt. II was (even apart from the possible effect of the extensive definition to which reference has been made) invalid at the time when the Act was passed in 1945, and he laid stress on the width of the discretion conferred upon the prescribed authority by s. 28. But the contention seems hopeless. The end which the legislature was seeking to achieve was plainly within the defence power of the Commonwealth. And, as Dixon J. said in Miller v. The Commonwealth [1946] HCA 42; (1946) 73 CLR 187 : "On a question of ultra vires, when the end is found to be relevant to the power and the means not inappropriate to achieve it, the inquiry stops. Whether less than was done might have been enough, whether more drastic provisions were made than the occasion demanded, whether the financial and economic conceptions inspiring the measure were theoretically sound, these are questions that are not in point. They are matters going to the manner of the exercise of the power, not to its ambit or extent" (1946) 73 CLR, at p 203 . (at p480)
6. The serious question in the case is whether the legislation in question - clearly valid when it was enacted as an attempt to deal with a situation directly created by war - had, before February 1958, by reason of the passage of time and changing circumstances, ceased to be capable of operating as a valid exercise of a power to make laws with respect to naval and military defence. We are really asking the same question if we ask - would that legislation have been valid if it had been originally enacted at the beginning of 1958? Though the meaning of s. 51 (vi.) of the Constitution does not change, yet it is unlike some other powers in that "its application depends upon facts, and, as those facts change, so may its actual operation as a power enabling the legislature to make a particular law" (per Dixon J. in Andrews v. Howell [1941] HCA 20; (1941) 65 CLR 255, at p 278 ). And "one difficulty to which this elastic application of the defence power gives rise is that regulations, the necessity or justification for which would be conceded during the emergency which called them forth, may continue unrevoked when the emergency may have passed and conditions may have assumed a normal appearance" (per Dixon J. in Stenhouse v. Coleman [1944] HCA 36; (1944) 69 CLR 457, at p 472 ). The question which arises has been considered in several recent cases, to which it is desirable briefly to refer. In all of them the fact that hostilities ceased in or about August 1945 appears to have been judicially noticed. (at p480)
7. Even before the end of 1945 the National Security (Female Minimum Rates) Regulations were challenged on the ground that the power which supported them ceased with the cessation of hostilities: Australian Textiles Pty. Ltd. v. The Commonwealth [1945] HCA 35; (1945) 71 CLR 161 . An attack on the same ground was made in 1945 on the National Security (Economic Organisation) Regulations in O'Neill v. O'Connell [1946] HCA 59; (1946) 72 CLR 101 . The challenge failed in each case, and it may be mentioned here that in Hume v. Higgins [1949] HCA 5; (1949) 78 CLR 116 the Economic Organisation Regulations were held to have been still valid and subsisting in May 1947. Three cases of importance were decided towards the end of 1946. These were Miller v. The Commonwealth [1946] HCA 42; (1946) 73 CLR 187 ; Real Estate Institute of N.S.W. v. Blair (1946) 73 CLR 213 , and Dawson v. The Commonwealth [1946] HCA 41; (1946) 73 CLR 157 . Regulations authorizing the fixing of maximum prices for stocks and shares, regulations providing for the housing of members and ex-members of the Forces, and regulations prohibiting the purchase of land without the Treasurer's consent, were respectively held to be sustained by the defence power, and to be valid and subsisting laws of the Commonwealth, notwithstanding the cessation of hostilities, though Dixon J. in Blair's Case [1946] HCA 43; (1946) 73 CLR 213 said that, when active hostilities ceased, "The wide and flexible application of the legislative power with respect to defence had necessarily changed its direction. Its direction was no longer towards sustaining the conflict with the enemy, but towards measures calculated to liquidate the organization for war and restore conditions of peace" (1946) 73 CLR, at p 231 . (at p481)
8. The next three cases were heard together in April 1949, and judgment was given in June 1949. They are R. v. Foster; Wagner v. Gall, and Collins v. Hunter [1949] HCA 16; (1949) 79 CLR 43 . The first case was concerned with the Women's Employment Regulations, which at that time were scheduled to the Women's Employment Act 1942-1946, and which set up a Women's Employment Board with wide powers of control over the employment of women in industry. The second was concerned with the National Security (Liquid Fuel) Regulations, which regulated the distribution and use of petrol throughout Australia, and the third with certain provisions of the National Security (War Service Moratorium) Regulations under which "a protected person" could obtain a warrant of possession authorizing him to occupy a house which was unoccupied or about to become unoccupied. The Court, which consisted of Latham C.J., Rich, Dixon, McTiernan, Williams and Webb JJ., delivered a single judgment, in which it was held that none of the challenged regulations could in 1949 be sustained under the defence power. In the course of a judgment, the whole of which is very important, the Court said: - "But the Court must see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States, and, unless it can do so, it is the duty of the Court to pronounce the enactment beyond the legislative power" (1949) 79 CLR, at p 84 . (at p481)
9. The last case that need be referred to, and perhaps the most important for the purposes of the present case, is Queensland Newspapers Pty. Ltd. v. McTavish (1951) 85 CLR 30 . In that case the Court was concerned with regs. 28A and 30 of the National Security (War Service Moratorium) Regulations, which imposed restrictions on the ejectment from premises occupied by them of members and discharged members of the forces and dependants of such persons. Other provisions of the same regulations had, as has been seen, been considered in 1949 in Collins v. Hunter [1949] HCA 16; (1949) 79 CLR 43 and had been then held to be no longer subsisting. It was held that regs. 28A and 30 also could no longer be sustained as a valid exercise of the defence power. It should be mentioned that in 1948 in Wenn v. Attorney-General (Vict.) (1948) 77 CLR 84 and in 1953 in Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144 the Re-establishment and Employment Act came before this Court, and in neither case was there any challenge to the validity of any part of it on the ground that it could no longer be supported under the defence power. In the former case an assumption of the continuing validity of Div. 2 of Pt. II was essential to the decision. In the latter case a successful attack was made on the original s. 28, but on a ground which was unconnected with s. 51 (vi.) and which was remediable and immediately remedied. (at p482)
10. The present case may be thought to differ in one respect from all the cases cited above in which regulations have been, whether successfully or unsuccessfully, attacked on the ground that the defence power was, so to speak, ad hoc exhausted. In each of those cases the regulations had been originally made during the period of actual hostilities, although those in question in Collins v. Hunter [1949] HCA 16; (1949) 79 CLR 43 and in McTavish's Case (1951) 85 CLR 30 were designed to deal, if only in minor degree, with the problem presented by the discharged serviceman and his re-entry into civilian life. Personnel were, of course, being discharged from time to time during the period of actual war. But the problem only became acute with the cessation of actual hostilities. The passing of the Re-establishment and Employment Act was obviously occasioned by the ending of the war with Germany and the imminence of the ending of the war with Japan, just as the Repatriation Acts and the War Service Homes Acts were occasioned by the imminence of the ending, and the actual ending, of the war of 1914-1918. In a sense, therefore, although the situation with which it dealt was a situation brought about by war, it is to be regarded as a peace-time measure rather than a war-time measure prolonged into peace-time. This does not mean that the question now before us is not precisely the same question as that which arose in R. v. Foster [1949] HCA 16; (1949) 79 CLR 43 and in Wagner v. Gall [1949] HCA 16; (1949) 79 CLR 43 . But it does mean that the Re-establishment and Employment Act makes, so to speak, a later start in life than such laws as the Women's Employment Regulations and the Liquid Fuel Regulations. On the other hand, it is not unimportant to observe that Pt. II of the Act, unlike many of its other provisions, does not involve merely a conferring of benefits or privileges by the Commonwealth on discharged members of the Forces. Like the regulations which were in question in Collins v. Hunter [1949] HCA 16; (1949) 79 CLR 43 and those in question in McTavish's Case (1951) 85 CLR 30 , it interferes very substantially with the rights of third parties. (at p483)
11. Another matter which must be borne in mind in the present case is the fact that the legislature has prescribed a time for the expiration of its law. At first it fixed a period of seven years. Later it extended that period to ten years. Later still it fixed a date of expiration which would give about thirteen years' operation to the Act, and finally a date which would give it about fifteen years' operation. At the date which is material in the present case, about twelve and a half years had elapsed since the commencement of the Act. Some weight must, of course, be given to these extensions, as indicating the view of Parliament, but it would, I think, be unsafe to treat them as showing more than an opinion that the Act might still be capable of beneficial operation. (at p483)
12. Having regard to all the factors to be considered, I cannot think that, if Div. 2 of Pt. II had been enacted for the first time in January 1958, it would have been possible for this Court to uphold it as a valid exercise of the defence power. (at p483)
13. The question must be answered - can only be answered - by reference to the initial justification of the law - the nexus between the power and what purports to be done in exercise of the power. If the justification is found by saying that the Commonwealth is authorized by the defence power to give privileges and benefits by way of reward or compensation to men and women who have served in the forces and their dependants or descendants, it would seem obvious that the power might be exercised without limitation of time and without reference to a past or present state of war or a past or present state of peace. But, as has been pointed out, Div. 2 of Pt. II does not merely confer privileges and benefits upon a class of Pt. II does not merely confer privileges and benefits upon a class of persons. It affects the rights of other persons. It restricts the common-law right of an employer to choose his own employees. The "reward" theory would not suffice to support Div. 2 of Pt. II. But in truth the real justification of the law as an exercise of the defence power lies elsewhere. It is found in this, that s. 51 (vi.) and (xxxix.) of the Constitution authorize the Parliament not only to make laws dealing with situations arising out of and in the course of a war, but also to make laws dealing with situations arising out of and in the course of the transition from war to peace - to do not only whatever may be necessary to organize the community for war, but whatever may be necessary for the winding up of that organization with a view to the restoration of the normal peace-time life of the community. As Rich J. put it in Blair's Case [1946] HCA 43; (1946) 73 CLR 213 , "The function of the defence power does not, of course, begin when the first shot is fired nor end with the last. The reintegration into the normal life of the community of the men who have been drawn off into the fighting services is, within reasonable limits, as much a function of the defence as was their initial absorption into those services . . . I do not think that it is beyond the scope of the defence power to provide reasonable facilities for enabling men of the fighting services to re-establish themselves in civil life during a reasonable time after they have been discharged . . ." (1946) 73 CLR, at p 225 . A similar initial justification for the regulations there in question was found in McTavish's Case (1951) 85 CLR 30 . The Court said: - "The conditions with which these regulations were designed to deal were those arising out of and in the course of the war and during the transition from conditions of armed conflict to those of outward peace, a transition in the course of which demobilization took place" (1951) 85 CLR, at p 47 . It is to be noted that in that case, as in this case, the period of the operation of the regulations had been extended from time to time, the last extension being up to the end of the year 1950. (at p484)
14. It may perhaps be conceded, for reasons suggested above, that Div. 2 of Pt. II should be accorded a longer life than the Moratorium Regulations considered in McTavish's Case (1951) 85 CLR 30 . The latter provisions were more drastic in their effect on the rights of other persons, and they might be thought to be less directly connected with demobilization and the replacement of members of the forces in civilian life. But it is as a measure concerned with demobilization and directed to the restoration of members of the forces to civilian life that Div. 2 of Pt. II must be tested. The Act is in toto a "Re-establishment" Act, and this is not the less so because "employment" is treated as a separate subject matter both in the long title and in the short title, and is dealt with specifically in a separate part of the Act. The Commonwealth has no power under the Constitution to make laws with respect to employment as such. It could only deal with "employment" so far as "employment" was incidental to "re-establishment". (at p484)
15. In R. v. Foster [1949] HCA 16; (1949) 79 CLR 43 the Court said: - "The effects of the past war will continue for centuries. The war has produced or contributed to changes in nearly every circumstance which affects the lives of civilized people. If it were held that the defence power would justify any legislation at any time which dealt with any matter the character of which had been changed by the war, or with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject." (1949) 79 CLR, at p 83 Questions such as the present cannot be solved "by the application of any mechanical hard and fast rule" (1949) 79 CLR, at p 83 . As Rich J. said in Blair's Case [1946] HCA 43; (1946) 73 CLR 213 : "The question is essentially one of degree" (1946) 73 CLR, at p 225 . But it is surely true to say that, before the expiration of twelve years from the end of the war, the community had settled down - so far as it will ever do so - into a normal peace-time life. And it does not seem possible to say that, after the lapse of twelve years, such provisions as those of Div. 2 of Pt. II could fairly or reasonably be regarded as incidental to the transition from war conditions to peace conditions. It is not impossible (though I do not think this was suggested in argument) that there are, or have been, isolated cases of members of the forces who were not discharged until long after the end of the war. But such isolated cases could not justify the continuance in force of such general restrictions on the normal rights of employers as are imposed by Div. 2 of Pt. II. The demurrer should, in my opinion, be overruled. (at p485)
KITTO J. For the reasons stated in the judgment of my brother Fullagar, which I have had the privilege of reading, I agree that the demurrer should be orverruled. (at p485)
TAYLOR J. It is beyond doubt that the legislative authority of the Commonwealth Parliament to make laws with respect to the defence of the Commonwealth extends to the making of appropriate provision of the general character which was made by Div. 2 of Pt. II of the Re-establishment and Employment Act 1945. Justification of such legislation as a law with respect to defence is to be found in the fact that it is designed to deal with the problem of restoration to civil life of those members of the community the normal course of whose lives has suffered the impact and interruption of war service. But in my view the contention that the legislation can be justified merely as a measure designed to reward past members of the services or as one designed to encourage recruiting in the event of a future war must be rejected. That being so, it is clear that the legislation cannot be continued in force indefinitely and it becomes necessary to say whether on 1st August 1958 it was within the legislative competence of the Parliament to provide, by the Re-establishment and Employment Act 1958 (No. 52), that the impugned provisions should subsist until 30th June 1960. These aspects of the matter have already been discussed fully by my brother Fullagar and it is sufficient for me to say, subject to one matter to which I shall presently refer, that I agree entirely with his view of the character of the legislation and with his conclusion that in 1958 it could not "fairly or reasonably be regarded as incidental to the transition from war conditions to peace conditions". (at p486)
2. The qualification which I have just made is concerned with the question whether the particular form of the Act of 1945 was such as to take it beyond legislative authority. Fullagar J. has expressed the view that it was valid when first enacted and my own view is that legislative provisions of the general character indicated are justifiable under the defence power but particular objection to the validity of Div. 2 may well have been open on the ground that the class for whose benefit those provisions were enacted was much too wide. Section 27 of the Act 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. The expression "person entitled to preference" is the subject of definition and it is wide enough to refer not only to members of the community who had served in the recent war but also to many other persons. The expression "member of the Forces" is the subject of definition by s. 4 of the Act but for the purposes of Div. 2 the meaning of that expression is expressly extended to include "a person who was, at any time during the war which commenced on the fourth day of August, One thousand nine hundred and fourteen, engaged on continuous full-time service as a member of - (a) the Defence Force; or (b) the Army Medical Corps Nursing Service." Immediately following the expansion of the primary definition appears the definition of the expression "person entitled to preference". This "means - (a) a member of the Forces who has been discharged or is awaiting discharge; and (b) a person registered under s. thirty-two of this Act." By s. 32 it is provided that where any person not otherwise entitled to the benefits of this Division considers that, having regard to the service performed by him in relation to the war, he is entitled to receive the benefits of this Division, he may apply to the Central Preference Board for registration and if the board to which the application is made considers that the person is so entitled the board shall, . . . register him accordingly. It will be seen, therefore, that the expression "person entitled to preference" includes at least three distinct categories of persons. It includes members of the community who had served in the forces during the recent war, members of the community who had served in the specified manner during the first world war, and, finally, other persons who had performed service "in relation to the war". Section 32 prescribes no standard in relation to the registration of persons falling within the third class and it may well be open to argument that the according of preference to such persons as a board might consider entitled to preference is outside the limits of the defence power. But, however this may be, it would seem that the general views which I have already expressed would lead to the conclusion that in 1945 it was not competent for the Parliament of the Commonwealth to legislate in such a way as to accord preference in employment to persons on the ground that they had served in the Forces between 1914 and 1918. Possibly it was thought that persons who had served during the recent war should not be given preference in employment over those who had served during the 1914-1918 war but the effect of the legislation, in terms, is to accord preference in employment to the latter class over other members of the community. It seems to me that it may well be contended that the legislation extended too far and I find it difficult by any process of reading down to limit the operation of s. 27 to those persons for whom such provision might then legitimately have been made. The expression "person entitled to preference" is the subject of express definition and it is difficult to see how this expression can be constrained by the application of s. 15A of the Acts Interpretation Act. It is, however, unnecessary that I should express any final view upon these matters for even if the Act was a valid exercise of the legislative power in 1945 it was beyond power when the Re-establishment and Employment Act 1958 (No. 52) was passed. (at p487)
3. I agree that the demurrer should be overruled. (at p487)
MENZIES J. The matter for decision here is the continued operation of Div. 2, Pt. II, of the Re-establishment and Employment Act 1945-1958, the principal effect of which is to require an employer to engage in preference to any other person "a person entitled to preference". A "person entitled to preference" is defined as meaning "(a) a member of the Forces who has been discharged or is awaiting discharge; and (b) a person registered under section thirty-two of this Act." A "member of the Forces" means, in relation to the war which commenced on 3rd September 1939, a member of the Permanent Forces and the Australian Imperial Force; a member of the Citizen Forces or of certain named services and detachments, who was engaged on continuous full-time service; and a member of the Forces and Services of any part of the King's dominions other than Australia who during the war was engaged on service in a prescribed area and was born in Australia or was immediately prior to becoming a member of those Forces or Services domiciled in Australia. It also includes a person who was at any time during the war which commenced on 4th August 1914 engaged on continuous full-time service as a member of (a) the Defence Force; or (b) the Army Medical Corps Nursing Service. As will be seen later it was also made to cover those who fought in Korea and Malaya. Section 32 of the Act authorizes any person, not otherwise being entitled and considering that having regard to the service performed by him in relation to the war he is entitled to the benefits of the Part, to apply within a stipulated time to a board which upon his application could register him. (at p488)
2. The preference which the Division gives to a person entitled to preference is not absolute but as the existence of the limitations which are imposed is not a matter that bears upon the constitutional validity of the provision in question, those limitations may for present purposes be disregarded. (at p488)
3. The defence power is the only source of power to make the law in question and despite the criticism of its form and terms I am prepared, subject to a reservation with regard to the inclusion of returned soldiers of the 1914-1918 war, to proceed on the footing that the law was valid when it was first enacted in 1945 (Act No. 11 of 1945). The history of the preference provisions in Div. 2 of Pt. II of the Act is, in short, that their operation was originally limited to the expiration of seven years after the cessation of hostilities in all the wars in which His Majesty was engaged at the date of commencement of the Division (Act No. 11 of 1945, s. 34); in 1951 (Act No. 48 of 1951) the operation of the Division was made to apply to members of the Forces who served in the Korea and the Malaya operations; in 1952 (Act No. 89 of 1952) the period of the operation of the Division was extended by three years; in 1955 (Act No. 56 of 1955) the second day of September 1958 was fixed as the date when the Division should cease to be in force; in 1958 (Act No. 52 of 1958) the date was postponed until 30th June 1960. It should be added that in 1953 (Act No. 90 of 1953) s. 28 was repealed and a new section substituted. It is this new section and s. 27 that contain the operative provisions upon which the defendant Wickham relied for his claim to preference in employment from the plaintiff council. In my opinion, however, it is only by virtue of the 1958 Act that the plaintiff could pursuant to s. 28 be directed to grant preference in employment to the defendant Wickham because although Wickham applied to the plaintiff for appointment in February 1958, that is, before 2nd September 1958 when the Act was due to expire, I do not regard s. 3 of Act No. 56 of 1955 taken with s. 8 of the Acts Interpretation Act as preserving the power of a prescribed authority to direct an employer to engage a person entitled to preference who had applied for employment before the date when the legislation ceased to operate. The real question is therefore whether Act No. 52 of 1958 validly extended the operation of Div. 2 of Pt. II of the Act after the second day of September 1958. (at p489)
4. Notwithstanding the argument to the contrary I am satisfied that the validity of Div. 2 of Pt. II of the Re-establishment and Employment Acts depended from the very first upon that aspect of the defence power which is concerned with the adjustment and re-adjustment of those civil relationships that are disrupted by war rather than the aspect that is concerned directly with the naval and military defence of the Commonwealth. I reject therefore the argument that the provisions in question can be treated as part of the remuneration or reward of those who gave service in war or as an inducement to serve in future wars. They do more than that; they impose obligations upon the people of Australia in the conduct of their business and they stand, if they are valid, as an exercise of power incidental to the power to make laws for the naval and military defence of the Commonwealth. (at p489)
5. It is not, however, in doubt that the Commonwealth Parliament can at any time make some laws to help returned soldiers; what is here in question is whether it can, regardless of time, do so by imposing obligations and disabilities upon employers generally in the conduct of their affairs, as for instance to compel an employer to refrain from employing the son of a soldier killed in the 1939-1945 war and to employ instead a soldier of the 1914-1918 war. In my judgment the power of Parliament to make laws on the subjects here in question exists but any such law which that power supports is necessarily of such limited duration that it does not go beyond the occasion which connects it with war, that is, re-adjustment occasioned by war. In this case, because as I see it the question is the validity of Act No. 52 of 1958, it is not necessary to consider the problem whether a law, which the circumstances existing when it was enacted would justify as a temporary law, is invalid because it is of unlimited or not sufficiently limited duration, or ceases to operate when a change in circumstances deprives it of the connexion with war that it had when it was enacted: cf. Australian Textiles Pty. Ltd. v. The Commonwealth (1945) 71 CLR 161 ; Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339 and Hume v. Higgins [1949] HCA 5; (1949) 78 CLR 116 . (at p490)
6. When, as is the case here, a court is called upon to determine whether or not the occasion that would justify such a law exists when the law was made, it must deal with the question broadly. This follows not only from the fact that a law such as is here under consideration is a general law which does not deal with particular cases but also from the fact that the Court in reaching a conclusion is for practical purposes confined to matters of which it can take judicial notice. The existence therefore of particular cases where the re-establishment and employment of returned soldiers is either unusually difficult or quite impossible (cases which are susceptible of particular provision) cannot therefore be decisive of the broad question whether by 1958 the period of re-adjustment after the 1939-1945 war had come to an end. If I had to decide this question de novo upon the basis of facts of which judicial notice could be taken I would say that it had, because the re-adjustment that is contemplated does not involve a determination that the consequences of war are no longer felt; it involves rather the conclusion that Australia and its people have returned to conditions of peace uncertain and hazardous though they be, so that the difficulties now to be met are not those of war or the transition from war to peace but those of living in an uneasy postwar world. Unfortunately history shows that settlement of one war may have in it the seeds of another and that international affairs in the meantime are in a large measure concerned with containing and coping with incidents that result from underlying tensions due in part to the results of past wars in order that those incidents will not themselves give rise to war. This may be so today but if it be so it does not mean, even upon the international level, that the problems of today are those of the war. Furthermore, in national affairs, with which we are here concerned, it is clearer that the problems of today are no longer those of war or of the transition from war to peace, and in Australia the defence power, which in war was found adequate to support legislation under which most of the activities of the people of Australia were controlled, and which I do not doubt is sufficient at all times for the needs of national defence, no longer supportrts emergency measures of an essentially civil character, which, during the war and in the transition from war to peace, were properly seen as connected sufficiently although incidentally with the war, so as to fall within the scope of the defence power. This conclusion is moreover indicated by what was said by this Court as early as 1949 in R. v. Foster (1949) 79 CLR, at pp 81-85 in a passage which is too long to quote and too concentrated to condense, and by its decision at the same time in Collins v. Hunter (1949) 79 CLR, at p 92 that an attempt to keep the War Service Moratorium Regulations in operation to 31st December 1949 was invalid. These regulations gave returned servicemen a qualified right to obtain the occupancy of any dwelling that was or was about to become vacant and with regard to them the Court said: "To continue these extreme provisions years after the real demobilization is over and to do so in favour of protected persons whose discharge took place as long ago as four years cannot be considered as incidental to the defence power" (1949) 79 CLR, at p 97 . The passing of thirteen years instead of four adds force to these words. See, too, Queensland Newspapers Pty. Ltd. v. McTavish (1951) 85 CLR 30 (at p491)
7. I have dealt with the case on the footing that the question of validity is to be determined as though the provisions in question did no more than grant preference to returned soldiers of the 1939-1945 war because that is clearly enough at the centre of the controversy which this action was brought to resolve. It is proper to add, however, that the mere inclusion in the category of those entitled to preference of those who fought in the Korea and Malaya operations is not of any significance on the question of validity of the whole Act; but the inclusion of those who are not returned soldiers of the 1939-1945 war but are returned soldiers of the 1914-1918 war, might of itself invalidate the law as a whole because by 1958 the defence power would not support the grant of preference to such returned soldiers and I am doubtful whether s. 15A of the Acts Interpretation Act could be applied to cut down the definition of those entitled to preference by the exclusion of the 1914-1918 returned soldiers, since to exclude them would be to subject them to a disability vis-a-vis the returned soldiers of the later war and not merely to deny them a privileged position as returned soldiers. (at p491)
8. Finally, I have not yet adverted to the fact that the law in question provides for preference as between those entitled to preference as well as for preference to those who are entitled to preference as against others. This could be important because from the statement of claim in the action it is not clear which form of preference the defendant Wickham asserts that he is entitled to get from the plaintiff council. It is not necessary to say more than that I consider that if the grant of preference to those entitled to preference over those who are not was by 1958 beyond power, as I think it was, then the grant of preference as between those entitled to preference must also be invalid. (at p492)
9. The case was argued upon demurrer to a statement of claim alleging inter alia that Div. 2 of Pt. II of the Re-establishment and Employment Act 1945-1956 is invalid. I content myself with saying that the demurrer should be overruled because the attempted extension ny Act No. 52 of 1958 of the operation of that Division from 2nd September 1958 to 30th June 1960 was invalid. (at p492)
WINDEYER J. The question raised by this demurrer is whether Div. 2 of Pt. II of the Re-establishment and Employment Act 1945-1956 is a valid law of the Commonwealth. More precisely it is whether provisions giving preference in employment to discharge members of the armed services which were enacted in 1945 are, as continued in operation to-day by Act No. 52 of 1958, a law with respect to "the naval and military defence of the Commonwealth" (The Constitution s. 51 (vi.)). Unless they can properly be so described, they are invalid; for it is not suggested that there is any other Commonwealth power to support them. It is a not uncommon mistake to think that these provisions are merely the equivalent of certain antecedent enactments which they displaced and superseded, and which were sometimes said to have established what was called "preference for returned soldiers" particularly in New South Wales. It is desirable to refer briefly to the somewhat complicated course of these earlier statutes to make clear the distinction between them and the Act now in question. (at p492)
2. After the war of 1914-1918 men who had been on active service outside Australia and who had been repatriated and discharged were popularly, and often for legal purposes, called "returned sailors and soldiers"; and, since the members of the A.I.F. were much more numerous than those from the Navy, the whole body came to be commonly called "returned soldiers", a name well-known and honourably regarded throughout Australia. The class also included women who had served abroad as nurses with the Australian Army Medical Corps. During and after the First World War returned soldiers were therefore persons who had enlisted voluntarily and served abroad, speaking generally, in some theatre of war. For their benefit the Commonwealth Parliament enacted s. 26A of the Public Service Act (see Act No. 37 of 1915, amended by Act No. 18 of 1917, s. 2). This provided that in appointments to the Commonwealth Public Service preference was to be given "to those persons who have served with satisfactory record in any Expeditionary Force raised under the provisions of the Defence Act". When the Commonwealth Public Service Act was consolidated in 1922 the matter was dealt with in rather more detail by ss. 83 and 84 in Pt. III Div. 2 which was headed "Returned Soldiers", and also by ss. 11 and 104. The Commonwealth Conciliation and Arbitration Act s. 81A (inserted by Act No. 39 of 1918, s. 7) also indirectly dealt with returned soldiers. It provided that nothing in any award or order under the Act or in any industrial agreement should operate to prevent the employment of returned soldiers or sailors (see Waterside Workers' Federation of Australia v. Gilchrist Watt & Sanderson Ltd. [1924] HCA 61; (1924) 34 CLR 482 ; and see now s. 181 of the Conciliation and Arbitration Act 1904-1956). (at p493)
3. In New South Wales the Returned Soldiers and Sailors Employment Act 1919, s. 3, required every employer to give preference in employ ment to a returned soldier or sailor capable of effectively performing the duties, if he were registered at a labour exchange. And the New South Wales Local Government Act 1919, s. 95, as originally enacted, provided that municipal and shire councils appointing servants should, other things being equal, give preference to returned soldiers and sailors: see Gardner v. Council of the Municipality of Kogarah (No. 2) (1925) 25 SR (NSW) 597; 41 WN 137 . In 1935 this last provision was repealed; but councils appointing servants were made subject to the general provisions of the Returned Soldiers and Sailors Employment Act 1919. (at p493)
4. This legislation, both of the Commonwealth and of New South Wales, no doubt reflected a sense of gratitude and of obligation to men who had served in the war, as well as a desire to aid them in re-establishing themselves in civil life. It remained in force and continued until after the outbreak of the Second World War to have some operation in practice: see e.g. Davis v. Western Suburbs Hospital (1941) 42 SR (NSW) 26; 59 WN 33 . Its provisions were of indefinite duration, but their validity in a constitutional sense was beyond question because, so far as the Commonwealth was concerned, they were limited to preference in the employment of the Crown and therefore not dependent on the defence power; and, so far as New South Wales was concerned, the State legislature had power to regulate conditions of employment within the State, except in so far as its legislation might come into conflict with valid Commonwealth industrial awards. (at p494)
5. After the outbreak of war in 1939 a new problem arose. It was first met in 1943, both in the Commonwealth and in New South Wales, by enactments which in effect brought discharged members of the Forces who had served abroad or in a combat area in the Second War substantially within the scope of the existing legislation in favour of returned soldiers: see Commonwealth Act No. 22 of 1943, s. 44, which added a new section, re-numbered as s. 117 to the Australian Soldiers' Repatriation Act; New South Wales Industrial Arbitration (Amendment) Act 1943 (N.S.W.), s. 5 (a) (iv). In 1942 the New South Wales legislature (by Act No. 33 of 1942) referred to the Parliament of the Commonwealth, among other matters, the reinstatement and advancement of persons who had been members of the fighting services of the Commonwealth during the war. And a similar Act was passed in Queensland. The references were expressed to be for five years from the cessation of hostilities. Whatever their effect (see Graham v. Paterson [1950] HCA 9; (1950) 81 CLR 1 ), it was not suggested in argument that these references could have any bearing on the present question. Other States did not made similar references. (at p494)
6. In Victoria the Discharged Servicemen's Preference Act 1943, which came into force by proclamation on 21st March 1944, dealt with the case of men who had served in the Second War. In effect it gave them a preference, both for first engagement and for promotion, in any employment. It applied to persons who when they enlisted were domiciled in Victoria and had served in a prescribed theatre of war. (at p494)
7. Thus in 1945 when the Commonwealth Parliament enacted the Re-establishment and Employment Act, some former members of the services were, by the law of New South Wales and of Victoria, entitled to a certain measure of preference in employment with private employers; and, by the law of the Commonwealth, Australian ex-servicemen who had served in combat areas were entitled to preference in employment under the Commonwealth. (at p494)
8. But in 1945 the existing preference legislation was swept away. That of the Commonwealth was largely repealed and replaced by the provisions of the Returned Soldiers and Sailors Re-establishment Act which are here in question; and this new comprehensive Commonwealth Act also superseded the State Acts (Wenn v. Attorney-General (Vict.) (1948) 77 CLR 84 ). Its preference provisions expressly bind the Crown in right of the Commonwealth or of a State and all Commonwealth and State authorities (s. 26). The main changes the Act made were: firstly, that those who could benefit under it were a much larger class than those who could have benefited under the laws replaced. Secondly, the conditions in which members of this new and wide class were entitled to preference were less clear and precise than formerly. And thirdly, whereas the earlier enactments were of indefinite duration, the preference sections of the new Act were to expire after seven years. The Act came into operation on 27th August 1945. It is entitled "An Act for the Re-establishment in Civil Life of Members of the Forces, for facilitating their Employment and other purposes". This title indicates its main and obvious purpose. Hostilities had ceased. The Act as a whole was directed to conditions occurring as the result of demobilization. It made elaborate provision for the reinstatement in civil employment of discharged members of the forces, for their vocational training and for various forms of assistance enabling them to become established in civil life. In respect of most of these matters, the class of possible beneficiaries includes substantially all men and women who served on full-time duty in any component of the armed forces during the war which began in 1939, and also the members of certain auxiliary organizations. Obviously the First War characteristic of a "returned soldier", a person who had enlisted voluntarily and had returned from active service abroad, could not be a governing consideration after the Second War. Conditions of service had been different. All members of the forces had not served on the same form of legal engagement. Some measure of conscription had been superimposed upon recruitment by voluntary enlistment; and the original rule of the Defence Act s. 49, that military service outside the Commonwealth and its Territories could not be compelled, had been, up to a point, abandoned. Australian Forces had been deployed in widely separated theatres. And men had served wherever they were sent. The Act as a whole, therefore, was naturally made to apply to all those who had served on full-time duty anywhere, however far from a combat area. But Div. 2 of Pt. II, that is the preference provisions here in question, was not restricted even to that large class. It was made to apply also to anyone who during the First War had been "engaged on continuous full-time service as a member of the Defence Force or the Army Medical Corps Nursing Service". This not only brought within the 1945 preference provisions all those who after the First War would have been described as "returned soldiers", and who had been entitled to the benefits of the antecedent legislation. It also brought in some persons who during 1914-1918 had been members of the Defence Force - as constituted by the Defence Act s. 30 - but who had not served abroad or even engaged to do so, and who up till 1945 had not participated in the rights of returned soldiers. And then, by s. 32, persons who had not been in the forces at all could be included; because for a time any person might apply to the Central Preference Board for inclusion "having regard to the service performed by him in relation to the war" (i.e. the war of 1939-1945). The character of the so-called preference given to this numerous miscellany of men and women who had served in or in association with the forces in either the First or Second World War appears from s. 27. This provides that an employer engaging an employee shall engage a member of the preferred class in preference to any other person "unless he has reasonable and substantial cause for not doing so". Then sub-s. (3) is in the following terms: "In determining whether reasonable and substantial cause exists for not engaging in employment a person entitled to preference, the employer concerned shall consider - (a) the length, locality and nature of the service of that person; (b) the comparative qualifications of that person and of other applicants for engagement in employment in the position concerned; (c) the qualifications required for the performance of the duties of the position; (d) the procedure (if any) provided by law for engaging persons for employment in the position; and (e) any other relevant matters." (at p496)
9. When two or more applicants for employment are candidates for the same position, sub-s. (4) requires an employer in choosing between them to consider the above-mentioned matters, as well as the comparative qualifications of the applicants. (at p496)
10. Section 28, in its original form, provided that where a person whom an employer refused to engage considered that, having regard to the provisions of s. 27, he should have been engaged, he might apply to a court of summary jurisdiction constituted by a police, stipendiary or special magistrate. The section was amended in 1953 by Act No. 90 of 1953 passed in consequence of the decision of this Court in Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144 . The effect of the amendment is to substitute "a prescribed authority" for "a court of summary jurisdiction". But the prescribed authority is to be a police, stipendiary or special magistrate; and, for present purposes, it matters not whether the matter be considered as s. 28 originally stood, or as it now is. The prescribed authority or magistrate to whom the complaint is made must have regard to the matters set out in sub-ss. (3) and (4) of s. 27; and then, subject to certain restrictions set out in s. 28 (3), he "shall make such order as he thinks just and reasonable in the circumstances". His decision is final and conclusive, except that by s. 29 there is an appeal to the Commonwealth Court of Conciliation and Arbitration by special leave of that court. On such an appeal the Arbitration Court may affirm, reverse or modify the magistrate's order and may "make such order as ought to have been made in the first instance". But, although the language of ss. 27 and 28 is thus language appropriate to judicial review and determination, the matter is not really susceptible of judicial consideration; for, as this Court pointed out in Queen Victoria Hospital v. Thornton (1953) 87 CLR, at p 151 s. 27 confers no rights which a court can judicially ascertain, examine or enforce. All that it does is to direct an employer to take certain matters into consideration. And all that s. 28 does is to require the prescribed authority, a magistrate, to take the same matters into consideration. If he does so, he has an unfettered discretion as to the order he will make. Moreover, the matters he must consider are stated in very general terms and their relative weight is left quite at large. In deciding whether there is "a reasonable and substantial cause" for passing over a person entitled to preference "the length, locality and nature of the war service" of the applicant must be considered. How these factors are to be assessed is not made clear. And, as between two applicants, each being a person entitled to preference, it is hard to see on what principle comparisons could be made. For example, in considering "locality", how should an employer or a magistrate compare, say, naval service at sea in 1914-1918 with service on land in North Africa or the Pacific, or in the air over Germany, in 1939-1945? And, in considering length of service, how, for example, does one compare time in the field with time as a prisoner of war; and is a man wounded in his first action to get more or less consideration than another man who served long and arduously in campaigns in, say, Gallipoli, France, Tobruk or New Guinea? And how should sea-going service, or service at the front on land, or service in the air, compare with the meritorious performance of essential tasks by those whose duty kept them ashore, on lines of communication or at the base? And, indeed, apart from cases of serious defaulters and men convicted of crime during their service, it is not clear what conclusions as to a "reasonable and substantial cause" are to be drawn from a consideration of the several matters mentioned; for in general men served for the periods and in the places required of them by superior authority. The Act seems to reflect some concept of rewarding meritorious service as well as the need of re-establishing a discharged soldier in civil life, when it requires that the locality and nature of his war service be considered to determine whether a civilian might be engaged in preference to him. The questions to which its words give rise are innumerable. A magistrate called upon to determine a matter pursuant to s. 28 could at best be guided only by some subjective standards. If he had had some experience of active service, some acquaintance with Service organisation and a knowledge of the terrain and conditions of different campaigns, he might be able to formulate some principles on which he would exercise his discretion; but they could only be matters of personal opinion. A magistrate who had not that knowledge and experience would have no guide at all. In its setting the obligation to consider "any other relevant matters" seems to have no determinate meaning. (at p498)
11. But, although from the point of view of former members of the forces the benefits which it confers may well appear nebulous and uncertain, the statute nevertheless gives them a right to challenge an employer's refusal to engage them. And this really defines the essential question. Is this a law with respect to the defence of the Commonwealth? Can it be said that it contributes to the defence of Australia that a magistrate or the Arbitration Court, acting on no ascertainable standard, should in 1959 have power to compel a private employer to engage as his servant a man whom he preferred not to engage merely because that man had at some time, perhaps forty years ago, been a member of the forces in time of war? Of course, a valid law for the defence of the Commonwealth may override ordinary contractual or proprietary rights. In time of actual war this is a commonplace. And a law really directed to defence does not become invalid because it may operate arbitrarily. Yet many people, including a great many former soldiers, must doubt the wisdom of subordinating the sons and daughters of men killed in action to men whose own service might never have taken them anywhere near a batt e. The results of the Act become the more surprising when one remembers that men of twenty-one today were children eight years old when hostilities ended in 1945. The policy of the Act is, however, a matter for the wisdom of Parliament. The Court is only concerned to see whether the law be within power. And whether or not an Act be within the defence power must be determined by its relation to defence, not by its possible consequences for individuals. Nevertheless, it is necessary to consider how challenged legislation operates to determine whether or not it can be said to have a real connexion with the defence of Australia; and for this reason I have referred to some of the uncertainties and anomalies the Act creates. (at p499)
12. I have had the great advantage of reading the judgment of my brother Fullagar. He has stated fully the effect of earlier decisions of this Court as to the defence power and its varying reach in peace and war. It is quite unnecessary for me to attempt to do what he has done. I shall therefore content myself with some comments upon the grounds on which counsel contended that the law in question is related to the naval and military defence of Australia. First they said it is a defence measure because it is a manner of rewarding service in the Forces; and they sought to liken its requirements to deferred pay, pensions, war gratuities and to various other benefits given to discharged soldiers by other provisions of the Act and by the Repatriation Act. The law, they argued, could be regarded as a measure in preparation for war, because it would encourage men to serve in future wars. Secondly, they said it was concerned with the transition from war to peace, with the restoration of peace-time conditions. Each argument merits some examination. There is no doubt that generosity to servicemen on their discharge, assistance to them to establish themselves in civil life and pensions for those disabled as the result of service can have a direct connexion with defence by promoting readiness to serve willingly in war. They may aid recruiting of the services in war and in peace; or, if recruitment be compelled, they may make men readier to serve with a good heart. I select two statements recognizing this; one in recent times, one of long ago. The first is from the judgment of Latham C.J. in Australian Textiles Pty. Ltd. v. The Commonwealth (1) where he said : "Provisions for the repatriation of soldiers and their re-establishment in civil life are directly associated with the defence of the Commonwealth. They are directly so associated in two ways. They are a necessary step in a wise scheme of demobilization, and are of great importance as affecting the defence of the Commonwealth in relation to any possible future war. The community has accepted the services of men in the past war. If the community expects the services of men for defence purposes in the future it is plain that it may be thought to be wise policy, as well as to be a matter of duty, to protect the interests of those who have served in a past war" (2). (at p499)
13. The second is from the Act 35 Eliz. c. 4, said to be the first Act which made any provision for sick and wounded soldiers. It was passed after the defeat of the Spanish Armada. The Act is not printed in the Statutes at Large except as re-enacted by 43 Eliz. c. 3; but it seems from Clode, Military Forces of the Crown, vol. i, at p. 353 that its preamble ran: "Forasmuch as that it is agreeable with Christian Charity, Policy, and the Honour of our Nation, that such as since the 25th March, 1588, have ventured their lives and lost their limbs, or disabled their bodies, or shall thereafter have ventured their lives, lost their limbs, or disabled their bodies in the defence of Her Majesty and the State, should at their return be relieved and rewarded, to the end that they may reap the fruit of their good deserving, and others may be encouraged to perform the like endeavours". This Act which, it may be noted, was of temporary duration provided for the payment of pensions out of parish rates to sick, hurt and maimed soldiers and mariners, whether they were pressed men or not. (at p500)
14. Very many men who enlisted voluntarily at the beginning of the Second World War no doubt did so because they wished to share the experience of warfare of which older men so often spoke. No one who knows soldiers would doubt this. Probably many of them looked forward to themselves being returned soldiers in a community in which returned soldiers had always had a special place, which however was based less on legal privileges than on public esteem and their corporate sense coming from past comradeship in a common endeavour. But the idea that a law of any sort which confers a benefit on discharged servicemen can be made under the defence power is mistaken. If that were correct, the more extravagant the privileges conferred the more surely they could be justified as a preparation for future warfare. If s. 27 depends for validity upon any concept of reward, recompense or encouragement, its connexion with defence is today far too remote, indirect and indefinite to sustain it. This does not cast any doubt on provisions for pensions, hospital treatment or any of the special benefits which the Re-establishment Act and the Repatriation Act give. These are provided for out of the revenue and resources of the Crown. Clearly the Crown can be required by Parliament to provide pensions and other benefits for the sailors, soldiers and airmen who are or have been in its service. Such laws are laws in respect of defence. And clearly too the Commonwealth could be required, as before 1945 it was, to give a preference to those who had served it in the armed Forces in war, when engaging men and women to serve it in peace. But the present law goes far beyond that. It dictates to subjects of the Crown how they shall carry on their private affairs. (at p500)
15. Such drastic provisions can therefore only be justified as a defence measure if they be supportable on the second branch of the argument, namely as within the defence power because concerned with demobilization and the disbanding of the forces and the re-establishment of their members in civil life. That measures for these purposes are within power is beyond doubt. When the law was enacted in 1945 it met a situation then existing by, in effect, requiring that in the transition of the war-time economy to peace-time conditions, men coming out of the services should have the first opportunity of filling vacancies occurring in civil industry. The period of seven years for which this part of the 1945 Act was originally to continue was, I assume, considered by Parliament to be ample for the repatriation (in the strict sense of return to Australia) and disbanding of the war-time forces; and so it proved. Thus limited, the measure would, I think, have been unquestionably valid had it been restricted to those who had served in the war then ending. But it was not so restricted. The inclusion of the others causes a difficulty; for the Act could not be justified as being for demobilization and for the re-employment in civil occupations of men who had in fact been demobilized and become civilians twenty-five years earlier. Yet their inclusion appears to have been regarded as an essential feature of the legislation; and in my view the preference provisions cannot be construed so as to exclude them without making the preference scheme radically different. If preference could be validly given in 1945 for a limited period, as I think it could, to men who had served in the war then ending, it was, it seems to me, open to the Parliament to decide the nature and extent of the preference. A preference valid for those men would not become invalid because it was provided that it should not prevail against men who had served in the earlier war. This, however, was not the scheme followed. The Act gives both those who served in the 1914-1918 war and those who served in the 1939-1945 war the same preference over other persons. I would myself have thought therefore that the whole of the preference provisions were void when first enacted. But this Court's decision in Wenn's Case (1948) 77 CLR 84 seems to make this view untenable. However, whether or not the provisions were valid in 1945 need not now be considered, for the period for which preference was to operate was extended beyond the initial seven years - first to ten years, by Act No. 89 of 1952; then until September 1958 by Act No. 56 of 1955; and then by Act No. 52 of 1958 until 30th June 1960. Yet before the original period of seven years had expired the Forces enlisted for the 1939-1945 war had in fact been disbanded and their members had become civilians in a period of full employment. Thus, even if the legislation were restricted to them, its continuance today is, I think, clearly beyond the defence power, for it cannot be fairly said to have now any direct or substantial connexion with defence. Special provisions restricted to men who had been on active service in Korea and Malaya might, if appropriately limited in time, be within power. But the occurrence of the operations in Korea and Malaya did not enable the period for the re-establishment of men discharged after the 1939-1945 war to be validly extended. (at p502)
16. Immediately after the war the defence power authorized many measures of various kinds for the restoration of peace-time conditions, because the whole community had been affected by wartime measures taken for the defence of the nation. So that when the war ended the defence power not only justified legislation for the re-establishment of soldiers as civilians; it also enabled the Parliament to deal with the crop of social and economic problems which were the immediate aftermath of war. But, as time goes on and conditions of peace continue, social and economic matters, including conditions of employment, which are primarily the concern of the States, can no longer be brought within the power of the Commonwealth just because they can be said to be in some rather remote way the continuing consequences of war. (at p502)
17. The scope of defence legislation today cannot be measured or confined by the circumstances of past wars. But the very fact that in the Second World War the whole man-power of the nation had to be controlled, diverted and directed to activities for the prosecution of the war only makes it the more important to remember that the traditional end of the disbanding of war-time forces is the restoration of their members to the status of civilians. In the time of Queen Elizabeth I, Parliament sought to attain this end by the simple course of requiring all idle and wandering soldiers and mariners who had returned from abroad to settle themselves in employment, and declaring those who failed to do so to be guilty of felony. On arrival from overseas soldiers and mariners had to repair to their own parishes where the local justices must find work for them or provide them with relief in the meantime (39 Eliz. c. 17). Opinion had come some distance by 1713 when 12 Anne Stat. 1, c. 13, passed after the Peace of Utrecht, enabled disbanded soldiers, although they had not completed the full apprenticeship required by law, to set up in trades, and gave them for three years an exemption from arrest for debt and from executions on their stock. Nevertheless in England sailors and soldiers discharged at the end of war service were in general left to fend for themselves, and they often suffered great hardship. This was so in the nineteenth century, especially after the reductions and economies following 1815. Of the seamen the paid off, a recent writer has said: "the transition from war to peace in the years following the Napoleonic war was made with a graceless indifference to the welfare of the men who had saved the country from invasion" (Woodward - The Age of Reform, p. 261). It was clearly within the power of the Commonwealth Parliament to ensure, as it has done, that the same reproach could not be made by future historians of Australia. But the power to make laws for naval and military defence must be considered against a background of established principles of British law concerning the position of the armed forces in the community - against the rule, that is, that in time of peace members of the services should enjoy, as far as their duties permit, the ordinary rights of citizens; but that (with some limited exceptions) they should be subject to the same general law as are other subjects of the Crown; and that disbanded soldiers and paidoff seamen should become civilians, without any permanent legal privileges or immunities different from other subjects. Thus, while it is proper to use the defence power to re-establish soldiers as civilians, it is not, in my view, within the scope of the power to create a privileged class among civilians. This view of course does not mean that any employer (including the Crown and its agencies) may not give such preferences to men who have served in war as he or it thinks proper. Neither, as I have already said, do I mean to cast any doubt on the validity of benefits which out of the resources of the Commonwealth may be given to individual ex-servicemen, such as pensions, hospital treatment, settlement on the land or other forms of advancement. (at p503)
18. What is the effect upon earlier New South Wales and Victorian Acts above mentioned, which were superseded but not repealed, of now holding the Commonwealth law relating to preference to be invalid is a question which does not arise in these proceedings. (at p503)
19. I agree that the demurrer should be overruled. (at p503)
ORDER
Demurrer overruled with costs.
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