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

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

A State law which confers preference in employment—including in promotions—to ex-servicemen is invalid to the extent it is inconsistent with a Commonwealth law which evinces an intention to exclusively govern the field of preference for ex-servicemen under s. 109 of the Constitution. The Commonwealth's Re-establishment and Employment Act 1945, in s. 24(2) and related provisions, evinces such an intention. As such, ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 (Vic) are inoperative, including in relation to promotions in the Victorian public service.

Parties
Plaintiff: Lionel Charles Wenn; Defendant: Attorney-General (Victoria); Intervener: Commonwealth of Australia
Jurisdiction
Australia
Procedural Posture
Constitutional Law—inconsistency of Commonwealth and State Statutes (on Removal From Supreme Court of Victoria) / Full Court Hearing on Questions of Law After Removal to High Court
Outcome
Plaintiff succeeded; declaration granted that ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 (Vic.) are invalid as inconsistent with the Commonwealth Act. Defendant to pay plaintiff's costs.
Legal Topics
Inconsistency Between Commonwealth and State Laws, Defence Power, Rehabilitation of Ex Servicemen, Public Service Employment, Invalidity of State Statutes Under S. 109 of the Constitution
Constitutional Law Inconsistency Between Commonwealth and State Laws Defence Power Rehabilitation of Ex Servicemen Public Service Employment Invalidity of State Statutes Under S. 109 of the Constitution

Case Brief

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Parties

Lionel Charles Wenn

Plaintiff

Attorney-General (Victoria)

Defendant

Commonwealth of Australia

Intervener

Procedural Posture

Constitutional Law—inconsistency of Commonwealth and State Statutes (on Removal From Supreme Court of Victoria) / Full Court Hearing on Questions of Law After Removal to High Court

Legal Issues

  1. 1 Whether s. 10 of the Discharged Servicemen's Preference Act 1943 (Vic.) is inconsistent with the Re-establishment and Employment Act 1945 (Cth) and thereby invalid under s. 109 of the Constitution
  2. 2 Whether the Commonwealth Act validly applies to the Crown in right of a State and whether this offends the constitutional limits recognised in, for example, Melbourne Corporation v. The Commonwealth

Ratio Decidendi

A State law which confers preference in employment—including in promotions—to ex-servicemen is invalid to the extent it is inconsistent with a Commonwealth law which evinces an intention to exclusively govern the field of preference for ex-servicemen under s. 109 of the Constitution. The Commonwealth's Re-establishment and Employment Act 1945, in s. 24(2) and related provisions, evinces such an intention. As such, ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 (Vic) are inoperative, including in relation to promotions in the Victorian public service.

Court Disposition

Plaintiff succeeded; declaration granted that ss. 4, 7, 9 and 10 of the Discharged Servicemen's Preference Act 1943 (Vic.) are invalid as inconsistent with the Commonwealth Act. Defendant to pay plaintiff's costs.

Orders

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