Wenn v Attorney-General (Vic) [1948] HCA 13

ee

y fico 36 Austral v

SALICRS

H. C. of A.

1948. Ww

MELBoURNE,

'Dixon and MeTiernan JJ.

WENN 5 5 6 S

ATTORNEY-GENERAL (VICTORIA)

Appl

ns Appl Telstra Corp y Sside Cv

reste huttleto Hurstville Ausra y Cain i) fussing C008 980" Common. 138 FLR SPI 78 WRI HIGH COURT [1948.

(HIGH COURT OF AUSTRALIA.]

PLAINTIFF ;

AND

DEFENDANT.

ON REMOVAL FROM THE SUPREME COURT OF VICTORIA.

Constitutional Law—Inconsistency of Commonwealth and State statutes—Rehabilita-

tion of discharged servicemen—Preference in employment—Promotion—Re-estab- lishment and Employment Act 1945 (No. 11 of 1945), ss. 4, 10, 12, 16, 24-27 —Discharged Servicemen's Preference Act 1943 (No. 4989) (Vict.), ss. 4, 7, 9, 10.

The Re-establishment and Employment Act 1945, enacted by the Common- wealth Parliament, provided, in Part II., Div. 1, for reinstatement of members of the Forces in civil employment. It provided that any person who had completed a period of war service might apply to his former employer for reinstatement in employment (s. 12 (1) ) and that the employer should make available to the applicant employment in the occupation in which the applicant was employed immediately prior to the commencement of his period of war service and under conditions not less favourable to him than those which would have been applicable to him in that occupation if he had remained in the employ- ment of the former employer (s. 16 (1), (3) (a) ). was defined as including the Crown (whether in right of the Part IL, Div. 2, which provided

" Employer " for the purposes of Div. 1 Commonwealth or of a State) (s. 10 (1) ). for preference in employment, contained the following provisions :—The application of the Division should extend in relation to employment by the Crown in right of the Commonwealth or a State (s. 26). An employer should, in the engagement of any person for employment, engage, in preference to any other person, a person entitled to preference—which meant, so far as here material, a " (ss. 4, able and substantial cause for not doing so (s. 27 (1)); but nothing in s. 27 should apply in relation to the engagement for employment by any employer of a person already employed by him (s. 27 (5) (a)). 'The provisions of this Division shall apply to the exclusion of any provisions, providing for preference in any matter relating to the employment of discharged members of the Forces, of any law of a State " (s. 24 (2) ).