Wenn v A-G (Vic) [1948] HCA 13

High Court of Australia Latham C.J. Rich, Starke, Dixon and McTiernan JJ. Wenn v A-G (Vic) [1948] HCA 13

ORDER Declare that ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 of Victoria are invalid. Defendant to pay plaintiff's costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 20 Latham C.J.

Both the Commonwealth Parliament and the Victorian Parliament have passed statutes relating to what is generally described as the rehabilitation of discharged servicemen. The Victorian Act was passed first: it is the Discharged Servicemen's Preference Act 1943, and is not subject to any time limit. The Commonwealth Act is the Re-establishment and Employment Act 1945. Certain provisions (ss. 24 to 33), some of which must be interpreted in this case, remain in operation only for seven years—s. 34. Both Acts deal with the reinstatement by prior employers of discharged servicemen in their employment and with preference to discharged servicemen in new engagements or appointments of employees. The State Act also provides in express terms for preference in promotions. The Commonwealth Act does not—at least expressly—give any preference with respect to promotion.

The persons entitled to the benefits of the Act are differently defined in the respective Acts. The Commonwealth Act, s. 4, defines "members of the forces" so as to include servicemen who did not serve outside Australia and members of the armed forces of other parts of the King's dominions who were born in Australia or domiciled in Australia immediately before entering the forces and, for some purposes, persons who served in the 1914-1918 war: see s. 25. The qualifications for benefit under the State Act are quite different. The benefits of the Act are given to "discharged servicemen." "Discharged serviceman" is defined in s. 4 of the Act in such a way as to make it necessary for the serviceman to have a specific connection with Victoria. He must have enlisted in Victoria or been domiciled in Victoria when he enlisted or was enrolled. But, further, he must have served in a prescribed theatre of war in the war which commenced in September 1939. The theatres of war as prescribed by proclamation are all overseas, except the Darwin area (for a period) and New Guinea. All the men qualified under the Victorian Act are also qualified under the Commonwealth Act, but men who enlisted in other States and were not domiciled in Victoria do not come within the Victorian Act, and men who were domiciled in Victoria or who enlisted in Victoria do not come within that Act unless they served in the prescribed theatres of war. Thus many "members of the forces" entitled to benefits under the Commonwealth Act would not be "discharged servicemen" within the meaning of the State Act and would therefore have no rights under that Act, though they would have rights under the Commonwealth Act.