We have been asked to advise as to whether it is within the powers of the Commonwealth to legislate with regard to the grant to persons who have been members of the Forces, of preference in employment, whether by the Commonwealth or otherwise, for an indefinite period or for a limited period after the termination of the war.

The power of the Parliament to legislate on this subject must be found, if at all, in paragraphs (vi) and (xxxix) of section 51 of the Constitution, which provide that the Parliament shall have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

…

(xxxix) Matters incidental to the execution of any power vested by the Constitution in the Parliament.

…

In Attorney-General v. Balding (27 C.L.R. 395) it was held that ‘a provision for the re-establishment in civil life of persons who have served in the defence forces of the Commonwealth when they are discharged from such service … is a matter so intimately connected with the defence of the Commonwealth as manifestly to be included within the scope of the power’ conferred by section 51(vi) of the Constitution (see per Knox C.J., Isaacs, Gavan Duffy, Powers and Rich J.J. at p. 398).

With a view to ensuring that discharged servicemen will be re-established in civil life it would, in our opinion, be clearly competent for Parliament to provide some measure of preference in employment for them. The question, however, arises as to the extent to which the right of preference in employment may be given to the persons in question.

The powers given to the Parliament by section 51(vi) and section 51(xxxix) must be in relation to matters directly involving the defence of the Commonwealth or in relation to matters incidental to that defence.

The relationship to defence of a measure providing for preference to discharged servicemen will differ according to the time at which the measure is passed. If enacted while a state of war is in existence it might materially influence recruiting and thus be directly related to defence; if enacted after the termination of the war it will not be so directly related but may be incidental to action taken in relation to defence during the war.

In either case, the question arises as to the period of time during which the right to preference may be enjoyed.

We do not think that the privilege can be granted indefinitely. Having regard, however, to Balding’s case (ubi supra) we are of opinion that it can be granted in respect of a limited period.

There is no criterion by which to measure the period, but we think that, in the prescription of any period, due regard should be had to the length of the duration of the war, to the economic conditions that have been created as the result of the war, and to the time which is likely to be required for the proper readjustment of the lives of the servicemen to civil conditions.

It is reasonable to assume that the return to a peace-time economy will only be achieved over a period of years. It is impossible to specify exactly what period of years would be required but it would, we think, be reasonable to specify a period of, say, seven years.

In order to lessen the risk of a challenge to the validity of any measure brought forward we would suggest that the provisions as to preference might be expressed to continue until a date (not later than the date of the expiration of the period of seven years next following the termination of the war) to be fixed by the Governor-General as the date as from which the Governor-General is satisfied preference in employment is no longer necessary for the purposes of the reinstatement of discharged servicemen.

[Vol. 36, p. 385]