Case: Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260
Outcome: cited
The applicants relied on Dao v Australian Postal Commission [1987] HCA 13 ; (1987) 162 CLR 317. Section 42(1) of the Postal Services Act 1975 (Cth) gave the Commission power to appoint persons as officers for the purposes of the Act. Section 42(2) provided that a person should not be appointed unless the Commission was satisfied, after the person had undergone a medical examination required by the Commission, as to his health and physical fitness and that he possessed such educational qualifications, or met such other requirements (if any) as were required by the Commission. The Commission dismissed Ms Dao and the other appellant from temporary employment, and refused them permanent employment, because in their medical examinations they failed to attain a specified minimum body weight determined by reference to their height and sex according to a scale prepared and used by the Commonwealth Department of Health. The Commission determined on this basis that they did not possess the standard of physical fitness required. The appellants complained before the New South Wales Equal Opportunity Tribunal that they had been discriminated against on the ground of their sex, contrary to s 25(1) of the Anti-Discrimination Act 1977 (NSW). The High Court held that the ss 25 and 113 of the State Act (which empowered the Tribunal to award damages and reinstatement) would result in "a clear usurpation ... of the responsibility resting on the Commission under the Commonwealth Act" and were "clearly in collision with s 42 ... and must therefore, by force of s 109 of the Constitution , give way." (at 335). Their Honours cited the statement of Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8 ; (1980) 142 CLR 237 at 260: "If, according to the true construction of the Commonwealth law, the right is absolute, then inevitably follows that the right is intended to prevail to the exclusion of any other law. A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field. So also with a Commonwealth law that grants a permission by way of positive authority. The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law. Again it produces inconsistency on both grounds: cf. Airlines of New South Wales Pty. Ltd. v. New South Wales [1965] HCA 3 ; (1965) 113 CLR 54, where the permission for which Commonwealth law provided was neither absolute nor comprehensive. (at p260)." 99 If the present case were concerned with a complaint under the Anti-Discrimination Act about the discharge of a cadet under reg 14 (2) (a), (b) or (c) it might be said that there was a direct collision between State and Commonwealth law of the kind that occurred in Dao . However, Ms Campbell's case is not directed at any exercise of the power of discharge. It does not trespass on that confined area of Commonwealth statutory power. By stipulating the grounds on which, and the procedure by which, cadets may be discharged the Commonwealth did not evince an intention to exclude generally the operation of a Tasmanian law outlawing discriminatory conduct in the areas of activity specified in s 22(1) , and particularly education and training; cf the discussion of Wardley in Dao at 336. 100 In any case, it is difficult to see how Ms Campbell's complaint on her own behalf is affected by any provision of the Air Force Act or the Cadet Forces Regulations .