Illawarra District County Council v Wickham [1959] HCA 18

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Illawarra District County Council v Wickham [1959] HCA 18

ORDER Demurrer overruled with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 16, 1959 Dixon C.J.

In my opinion this demurrer should be overruled. I have had the advantage of reading the judgments of the other members of the Court giving reasons for this conclusion. From those judgments the nature of the case fully appears as do the considerations upon which the matter turns and I shall not go over the ground again. All I desire to do is to make it clear that I confine my decision to the precise matter which I think is involved in the demurrer. When the action was brought on 12th June 1958 the questions raised for decision were whether the provisions of s. 27 of the Re-establishment and Employment Act 1945-1956 had been in force in relation to Wickham when he applied to the Illawarra Council on 17th February 1958 and whether s. 28 had been in force in relation to him when he applied to the magistrate on 11th March 1958 and had remained in force. The answers to these questions depended on a more general question, namely whether in relation to such matters there had been an effective extension of the operation of the two sections by the amendment to s. 34 made by s. 3 (1) of Act No. 56 of 1955 to 2nd September 1958. By the time the case reached this Court it may be that the true question had come to be whether the amendment made in s. 34 (1) by s. 3 of Act No. 52 of 1958 had effectively extended the operation of the provision into and beyond the present time. But I prefer to take the question as presented at the issue of the writ. I confine my decision to cases like the present because I do not want to pronounce upon the position of those falling under Pt. XI (inserted by s. 13 of Act No. 48 of 1951) which relates to men serving in Korea and Malaya. It may be that there can be no severance in their favour of the intended operation through s. 138 (1) of the amendment in s. 34 (1) made by s. 3 (1) of Act No. 56 of 1955 but that we are not now called on to decide. But as to the general application of ss. 27 and 28, I think that it was not competent to the Commonwealth Parliament to extend their provisions into the year 1958 by s. 3 (1) of Act No. 56 of 1955. This conclusion is based upon a combination of considerations all of which show that an attempt at that date so to extend the operation of the provisions could not be a valid exercise of the defence power. The preference in employment which these provisions seek to give and to maintain can be brought within the legislative power with respect to defence only as measures forming a consequence of war. It is of course true that provisions for the preference in employment of discharged servicemen may be enacted in the exercise of the defence power before a war is concluded and indeed at the height of the conflict. The conduct of the war itself may supply additional constitutional reasons why such a law is within the defence power. But the obvious constitutional justification for laws providing for a general preference for ex-servicemen is found in the expected or actual conclusion of hostilities. For it lies in the necessity of fully re-establishing discharged servicemen in civil life and restoring them to their due place in a community which, the war being over, must itself undergo all the processes of re-organization that the resumption of conditions of peace may demand. The considerations are evident enough which make it proper to regard measures for such purposes as consequential upon the war and as within the defence power. As time advances, however, the force of the application of these considerations to the situation as it exists must diminish and the connexion with the defence power must become less and less direct and in the end become insufficient to support the law. A provision dealing with men suffering from defined disabilities stands on a different footing: so may laws dealing with other specific aspects of past war service. But here the question concerns a completely general law covering almost every kind of service during the war in or in connexion with the armed forces, a general law derogating from the civil rights of all others in reference to employment and from the rights of employers, and the question is whether an extension of such a law into the thirteenth year after the cessation of hostilities can be sustained as an exercise of the defence power. For the reasons so fully set out in the judgments of Fullagar and Windeyer JJ. I think that it has become impossible to sustain it. I am of opinion that the general operation of ss. 27 and 28 could not validly be extended by Act No. 56 of 1955 into the year 1958 and therefore could not apply to the present case.