Actors & Announcers Equity Association of Australia v Fontana Films Pty Ltd

Actors & Announcers Equity Association of Australia v Fontana Films Pty Ltd - [1982] HCA 23 - HCA 1982 case summary — Zoe

[7]

An order restraining the Respondents and each of them, by themselves and by their respective servants and agents, from engaging in conduct, in concert with any person, that hinders or prevents the supply of actors and other artistes, and the services of such actors and other artistes, by any theatrical agents to the applicant, where such conduct is engaged in for the purpose, and would have or be likely to have the effect of causing substantial loss or damage to the business of the applicant as a producer of motion picture films. The respondents were Actors and Announcers Equity Association of Australia, a trade union registered under the Trade Union Act 1881 N.S.W. (the first respondent, to which it will be convenient to refer as "the union"), Uri Windt and Janette Paramore, officers of the Union (the second respondents) and certain other persons. An application was made to McGregor J. for an interlocutory injunction. The facts upon which Fontana relied in support of the application were, shortly stated, as follows. Fontana did not employ actors or artistes on its permanent staff, but it would obtain through a theatrical agency the services of such actors and artistes as it needed for the purposes of a particular production. In October 1980, when Fontana was preparing for the production of a motion picture film, "The Brothers Zak", a demand was made upon it by the respondents that it should enter into an agreement which would have in effect prevented it from employing actors or artistes who were not members of the union and which would have provided for payment of what are known as residual fees to performers employed. When Fontana refused to sign the agreement, the union declared its operations "black" and in consequence of pressure exerted by the union upon the theatrical agents Fontana was unable to obtain the services of actors and artistes and was obliged to cease production of all of its projected films. McGregor J. held that the evidence prima facie established that the first respondent in concert with the second respondents engaged in conduct that has hindered and prevented the supply of services by theatrical agents to the applicant, a corporation, and that the conduct was engaged in for the purpose and would have, and be likely to have, the effect, in respect of the applicant, referred to in s. 45D(1)(b)(i) of the Act; the judgment refers to s. 45D(1)(b)(ii) but this was obviously a typographical error. It appears that in making his finding against the union he relied not only on the evidence, but also on the deeming provisions of s. 45D(5). He ordered, inter alia, as follows: That the first Respondent, its servants and agents and the second Respondents and each of them be restrained until the determination of the proceedings herein or further order from engaging in conduct in concert with each other or with any other person that hinders or prevents the supply to the applicant by: -

[30]

The condensed words of s. 45D(1) create no fewer than twelve different offences, or twenty-four, if an offence which involves a related body corporate is regarded as different from an offence which involves the corporation to which the relationship exists. It was suggested on behalf of the union that if the evidence revealed prima facie a contravention of any provision of s. 45D, it was a contravention of s. 45D(1)(a). That submission was based on evidence which showed that in the case of some productions (including the production of "The Brothers Zak") the actors, although chosen and casted by Fontana, would enter into a contract with, and be paid by, the person for whom Fontana was producing the film - in the case of "The Brothers Zak", a group of investors represented by one Clarke. In these circumstances, it was submitted that the union's case must be that the conduct of the respondents hindered or prevented the supply of films by Fontana to Clarke. The reason for making these submissions was, no doubt, that the constitutional validity of s. 45D(1)(a) appears more doubtful than does that of s. 45D(1)(b). However, it appears clearly from the form of the application, the judgment of McGregor J. and the order made that from beginning to end the case was treated as falling within s. 45D(1)(b)(i). The conduct alleged in the present case could not fall within s. 45D(1)(a), because it was alleged (and found prima facie) to be conduct that was engaged in for the purpose, and that would have or be likely to have the effect, of causing substantial loss or damage to the business of Fontana, and it was never alleged or suggested that it was any purpose of the respondents to damage the business of Clarke or any other person for whom Fontana was producing films. In fact it is clear that the case presented by Fontana was that Fontana was "the fourth person" within s. 45D(1). Under s. 45D(1)(a), "the fourth person" is not a corporation, but under s. 45D(1)(b) "the fourth person" is a corporation, and the case has proceeded on the unchallenged assumption that Fontana is a trading corporation.

[32]

The only source of power upon which the Commonwealth places reliance to support s. 45D(1)(b)(i) is s. 51(xx) of the Constitution. The question is whether the provision in question is a law with respect to "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". The effect of the provision now in question is to forbid one person, in concert with another, to engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation, or the acquisition of goods or services by a third person from a corporation, where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the corporation, or of a body corporate that is related to the corporation. The definition of corporation in s. 4 of the Act requires corporation in s. 45D(1) to be understood as including not only the three sorts of corporations mentioned in s. 51(xx) and corporations incorporated in a Territory (which would be subject to the power conferred by s. 122 of the Constitution), but also the holding company of any such corporation. The effect of s. 4A(5) is that the expression "body corporate that is related to that person" in s. 45D(1)(b)(i) includes the holding company, a subsidiary, and a subsidiary of the holding company, of the corporation which is "the fourth person" within the meaning of the provision. It is a question whether s. 4A(5) and par. (d) of the definition of corporation would make the connexion between the legislation in its relation to the holding company or other related company on the one hand, and a corporation of the kind mentioned in s. 51(xx) on the other, too remote. However, both the definition of corporation in s. 4 of the Act, and s. 45D(1)(b)(i) itself, are severable. One may omit par. (d) from that definition, and omit the words "or of a body corporate that is related to that person" from s. 45D(1)(b)(i), without in any way altering the effect of the words that remain, and if the inclusion of that paragraph or of those words would render the provisions of s. 45D(1)(b)(i) invalid, s. 15A of the Acts Interpretation Act will require the words referring to related bodies corporate to be severed from s. 45D(1)(b)(i). I therefore need not consider whether the provision in question is valid in its application to conduct engaged in for the purpose of causing loss or damage to the business of a holding company or other related body corporate. Moreover, since no question of foreign corporations or financial corporations arises in the present case, it is sufficient to consider the validity of the provision in its relation to trading corporations formed within the limits of the Commonwealth.

[34]

The limits of the power granted by s. 51(xx) have not yet been defined. That paragraph of the Constitution presents considerable difficulties of interpretation. In the first place, the power is conferred by reference to persons. Paragraph (xix), in so far as it refers to aliens, and par. (xxvi) are the only other paragraphs of s. 51 which confer power in that way. Paragraph (xxvi) stands in a special position, for it proceeds on the assumption that special laws may be deemed necessary for the people of a particular race. However, having regard to the federal nature of the Constitution, it is difficult to suppose that the powers conferred by pars. (xix) and (xx) were intended to extend to the enactment of a complete code of laws, on all subjects, applicable to the persons named in those paragraphs. It is unlikely, for example, that it was intended that the Parliament might provide that the rights and duties of aliens should be determined by a special law, different from that which applies to Australian citizens, in relation to such matters as contracts, torts, succession and criminal responsibility. Similarly, in the case of the corporations described in s. 51(xx), extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations. Some striking examples were given by Higgins J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [1] , although, as Higgins J. pointed out, the argument of inconvenience suggested by these extraordinary consequences was not conclusive. Other difficulties in relation to s. 51(xx) are caused by the need to construe the Constitution as a whole, and thus to reconcile par. (xx) with other parts of s. 51: see Bank of N.S.W. v. The Commonwealth [2] and Strickland v. Rocla Concrete Pipes Ltd. [3] , per Menzies J. However, it is unnecessary, and undesirable, to attempt in the present case to define the outer limits of the power conferred by s. 51 (xx). The method which the courts have followed in the past, of approaching the solution of the difficult problems presented by such a provision as s. 51 (xx) gradually and with caution, proceeding no further at any time than the needs of the particular case require, is the most likely, in the end, to achieve the proper reconciliation between the apparent width of s. 51(xx) and the maintenance of the federal balance which the Constitution requires. The authorities in which s. 51 (xx) has been considered are opposed to the view that a law comes within the power simply because it happens to apply to corporations of the kind described in that paragraph. The descriptive adjectives, "foreign", "trading" and "financial" are important. In Huddart, Parker & Co. Pty. Ltd. v. Moorehead [4] , Isaacs J. said:

[35]

Just as their incorporation distinguishes them from natural individuals, so their trading or financial capacities distinguish them from other corporations, and it is as necessary to give effect to the words "trading" and "financial" as to the word "corporation". The words of par. (xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid: cf. per Walsh J. in Strickland v. Rocla Concrete Pipes Ltd. [5] . In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. This does not mean that a law under s. 51 (xx) may apply only to the foreign activities of a foreign corporation, for ex hypothesi the law will be one for the peace, order and good government of the Commonwealth. It means that the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it. For present purposes, however, it is enough that it is established by Strickland v. Rocla Concrete Pipes Ltd. that a law which governs the trading activities of trading corporations formed within the limits of the Commonwealth is within the scope of s. 51 (xx): see especially at pp. 490, 508, 525. Of course, the law in the present case does not regulate or govern the activities of trading corporations; it regulates the conduct of others. But the conduct to which the law is directed is conduct designed to cause, and likely to cause, substantial loss or damage to the business of a trading corporation formed within the limits of the Commonwealth. I can see no reason in principle why such a law should necessarily fall outside the scope of s. 51 (xx). A law may be one with respect to a trading corporation, although it casts obligations upon a person other than a trading corporation. An example is provided by s. 5 of the Crimes Act 1914 Cth, as amended, considered in Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. [6] . A law will fall within the power if the conduct to which it is directed is so relevant to the subject of the power that a law rendering such conduct unlawful can be described as a law with respect to that subject. Decisions on other paragraphs of s. 51 furnish analogies. The power given by s. 51(i) extends to forbidding anything directly affecting interstate or overseas trade or commerce: Redfern v. Dunlop Rubber Australia Ltd [7] . The power conferred by s. 51(v) enables the Parliament to prohibit conduct sufficiently relevant to the subject of television services: Herald and Weekly Times Ltd. v. The Commonwealth [8] . It does not follow that s. 51(xx) empowers the Parliament to pass a law prohibiting any conduct that might damage a trading corporation formed within the limits of the Commonwealth. However, if the prohibition is directed to conduct that is calculated to damage the trading activities of the trading corporation there seems no reason to doubt that it is within the scope of the power. 1. (1909) 8 C.L.R. 330, at pp. 409-410. 2. (1948) 76 C.L.R. 1, at pp. 203-204, 256, 304 and 330. 3. (1971) 124 C.L.R. 468, at pp. 507-508. 4. (1909) 8 C.L.R., at p. 397. 5. (1971) 124 C.L.R., at p. 519. 6. (1977) 136 C.L.R. 235, at pp. 246-247. 7. (1964) 110 C.L.R. 194, at pp. 219-220. 8. (1966) 115 C.L.R. 418, at p. 433.

[36]

In the attack made by counsel on the validity of the provision, considerable stress was laid on the fact that it appears from the provisions of s. 45D(1), viewed as a whole, that the object of the legislation is to prevent persons from engaging in secondary boycotts. In deciding whether a law is within Commonwealth power it is not permissible to attempt to discover the motives with which the law was enacted. It is necessary to consider what legal operation the law will have, if valid, and if the law has an actual and immediate operation within a field of Commonwealth power, it will be valid notwithstanding that it has another purpose which could not be achieved directly by the exercise of Commonwealth power: see Melbourne Corporation v. The Commonwealth [9] ; Fairfax v. Federal Commissioner of Taxation [10] . As has been shown, the direct legal operation of s. 45D(1)(b)(i), in its relation to trading corporations, is to prohibit persons, acting in concert, from engaging in conduct that would hinder or prevent the supply of goods or services by some other person to a trading corporation, or the acquisition of goods or services by some other person from such a corporation, when the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the corporation. It was submitted that the use of the word "business" takes the provision outside the power. "Business" may have a larger meaning than "trade" (Smith v. Anderson [11] ) and may, it was said, extend to anything the corporation does, whether or not in the way of trade. Moreover, it was submitted, the supply of goods and services to a trading corporation, or the acquisition of goods or services from a trading corporation, may take place in the course of business but otherwise than in the course of trade, as, for example, when a trading corporation buys the stationery which it needs for its office. Accordingly, it was said, the protection given by s. 45D(1)(b)(i) is not limited to the trading activities of the corporation, and the provision is not sufficiently relevant to the head of power. It may be accepted that the words "business" and "trade" are not identical in meaning: see Hornsby Shire Council v. Salmar Holdings Pty. Ltd [12] . However, both are wide and general words, and they are not necessarily mutually exclusive in meaning: see Hornsby Shire Council v. Salmar Holdings Pty. Ltd. [13] . In Strickland v. Rocla Concrete Pipes Ltd., Menzies J. appears to have used the terms interchangeably. He said that "a law relating to the trading of trading corporations formed within Australia" is prima facie within power [14] , and later said that "a law governing the conduct of its business by a trading corporation formed within the limits of the Commonwealth is within the power of the Parliament by virtue of s. 51(xx)" [15] . In my opinion, the fact that the provision in question refers to "business" rather than "trade" does not take it outside the power. It is the business of a trading corporation to trade, and its business is its trading. In any case, one could hardly cause substantial loss or damage to the business of a trading corporation without damaging the trading corporation in its trading activities. It would be "narrow or pedantic" (to use the words of Barwick C.J. in Strickland v. Rocla Concrete Pipes Ltd. [16] ) to view the provision now in question as other than a law for the protection of the trading activities of a trading corporation formed within the limits of the Commonwealth. I consider that s. 45D(1)(b)(i) directly operates on the subject matter of the power given by s. 51(xx).

[40]

It is a fundamental principle that "the Parliament cannot turn a law which is not upon a subject matter of legislative power into a law which is upon such a subject matter by the simple expedient of creating a statutory fiction": Herald and Weekly Times Ltd. v. The Commonwealth [18] . It "may not, by enacting legislation which purports to be merely procedural, extend the operation of its laws to subjects beyond its power": Milicevic v. Campbell [19] . For example, the Parliament could not take upon itself power to deal with persons not immigrants simply by declaring them to be immigrants (Williamson v. Ah On [20] ); its power to make laws with respect to lighthouses would not enable it to make laws with respect to things (not in truth lighthouses) which, in the opinion of the Governor-General, were lighthouses (Australian Communist Party v. The Commonwealth [21] ); it could not empower a Commissioner to determine an intrastate dispute by making a finding that it was an interstate dispute (Reg. v. Portus; Ex parte McNeil [22] ). However, the Parliament can place on a person said to be affected by a law the onus of proving that the constitutional fact does not exist. It was so held in Williamson v. Ah On. But the majority in that case went further, and upheld the validity of a provision that precluded the person affected from discharging the burden of proof except in a particular specified way. The matter which the defendant was there required to disprove was that he was "an immigrant who has evaded an officer ", and the statute provided that the defendant could not discharge his burden of proof unless in his personal evidence he stated truly the name of the vessel by which he travelled to Australia and the date and place of his arrival in the Commonwealth. Some of the judgments in that case do not very clearly distinguish between the two questions in the case - the validity of the provision reversing the onus and that of the provision requiring the onus to be discharged in a particular way. The latter question is most distinctly dealt with by Isaacs J. and Rich and Starke JJ. Isaacs J. appears to have been of the opinion that a provision that the non-existence of a jurisdictional fact might be proved only in a certain way would be invalid only if it were "so flagrantly destructive of any real and reasonable chance to place the real facts before the Court" as to be "a mere disguise for extending the legislative power" [23] . Rich and Starke JJ. said that although some persons might not know, or might have forgotten, the facts which were required to be stated (and thus, it may be assumed, would be unable to prove the true facts), that went only to the wisdom, fairness and justice of the law and not to its competency [24] . However, it seems to me unnecessary in this case, at it was in Milicevic v. Campbell, to consider the correctness of Williamson v. Ah On in so far as it related to the statutory provision which required the burden of disproof of the existence of a jurisdictional fact to be discharged in a particular way. For in my opinion s. 45D(5) does not relate to the proof of jurisdictional facts.

[42]

It would, of course, be a jurisdictional fact that a company which it was sought to treat as "the fourth person" to attract the operation of s. 45D(1)(b)(i) was a corporation of the kind described in s. 51(xx). The provisions of s. 45D(1)(b)(i) could not validly be extended to persons who engaged in a boycott of a company which was not a trading corporation by deeming the company to be a trading corporation. Section 45D(5) renders the provisions of s. 45D(1) applicable to an organization which in fact has not engaged in any conduct for the purpose or with the effect of causing loss or damage to any corporation, but it does so only if the organization does not establish that it took all reasonable steps to prevent the participants in the conduct from engaging in it. The fact that conduct has been engaged in for the purpose and with the likely effect of causing substantial loss or damage to (inter alia) the trading of a trading corporation formed within the limits of the Commonwealth must be established. Then s. 45D(5) in effect renders the organization liable unless it has taken all reasonable steps to prevent the participants from engaging in that conduct, and requires the organization to discharge the onus of proving that it has done so. In my opinion this provision was reasonably incidental to the power conferred by s. 51(xx). It is true that two or more members of an organization may engage in conduct that amounts to a secondary boycott without the knowledge, or against the wishes, and even in spite of the endeavours, of those controlling the organization. But it does not follow that it is beyond the power of the Parliament to require the organization to take all reasonable steps to prevent its members from engaging in the conduct. It may be difficult to sheet home to an organization its complicity in a secondary boycott, even when it has been the instigator, and the remedy against individual members may prove ineffectual. The object of s. 45D(1)(b)(i) being (inter alia) the protection of the trading activities of trading corporations from substantial loss or damage, it seems to me that to require an organization to take all reasonable steps to prevent its members from engaging in conduct intended and likely to cause that damage is incidental to the attainment of the object. If the Parliament has power to protect the trading activities of the trading corporation, it is for Parliament to decide what measures of protection it will adopt. The wisdom or fairness of those measures is not a matter for the Court.

[44]

In my opinion the power of the Parliament to make laws with respect to immigration does enable it to impose upon the ship's agent who is authorized on its behalf to perform the duties imposed by laws in force in the port, an absolute liability to a penalty upon entry of an immigrant from the vessel. Such a provision is directed to promoting in those who control the ship, or who may affect its control, care to prevent entry of persons from the ship as immigrants; and is therefore a law with respect to immigration. The Court did not there discuss the principle that a power given by s. 51 includes within itself all that is necessary for its reasonable fulfilment, but the case does seem to me to provide an illustration of that principle. Whether or not that is a correct view, the decision is in my opinion of direct assistance in the present case, for it shows that a power given by a paragraph of s. 51 is wide enough to enable the Parliament to impose penalties on persons who fail to take care to prevent breaches of laws made in exercise of the power. In Burton v. Honan [27] the nature of the incidental power was expressly discussed. That was a case in which a section of the Customs Act 1901 Cth, as amended, provided for the forfeiture of goods imported in contravention of the Act, notwithstanding that they had been released by Customs for home consumption and had passed through the hands of a number of persons who had dealt with them quite honestly and had acquired apparent title bona fide and for value [28] . Dixon C.J. said [29] : These matters of incidental powers are largely questions of degree, but in considering them we must not lose sight of the fact that once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers are matters entirely for the Legislature and not for the Judiciary. These remarks are equally applicable whether the incidental power is that included in the power itself, or that conferred by s. 51 (xxxix). 1. (1931) 44 C.L.R. 254. 2. (1931) 44 C.L.R., at p. 261. 3. (1952) 86 C.L.R. 169. 4. (1952) 86 C.L.R., at p. 178. 5. (1952) 86 C.L.R., at p. 179.

[107]

But this Court has consistently maintained that where a challenge is made to a statute on the ground that it is not a law with respect to a particular legislative subject matter it is irrelevant to consider the motives which led to its enactment or to examine the indirect consequences which may, ultimately, result from it; if it be, in substance, a law with respect to a particular subject matter the motives which influenced the legislature or the indirect consequences of the measure cannot operate to change its character. Later his Honour said [49] : The object, the purpose and the intention of an enactment made under such a power can be gathered only from an examination of what the legislature has chosen to enact and not from a consideration of extraneous matters. Unrestricted by limitations arising from the doctrine of the reserved powers of the States the power of the Commonwealth to make laws with respect to taxation stands revealed as a head of power subject to no limitations except those prescribed by the Constitution itself. The test of validity must be, therefore, whether an impugned law creates duties, obligations or liabilities which are extraneous to the power. If it does no more than impose a liability to tax it is such a law and it is not to the point to consider the motives of the legislature in enacting it or to examine the purpose which it was intended to serve. His Honour then said of the impugned Division [50] : It imposes no duties, obligations or liabilities upon trustees of superannuation funds other than an obligation to pay income tax in certain events; it imposes no obligation upon them to invest their funds in any particular fashion and no duties, obligation or liabilities which are extraneous to the power. It may be conceded that it offers a substantial inducement to trustees to invest a substantial proportion of their funds in public and Commonwealth securities but this is, by no means, sufficient to enable it to be said that it is not a law with respect to taxation. 1. (1965) 114 C.L.R., at p. 14. 2. (1965) 114 C.L.R., at p. 16. 3. (1965) 114 C.L.R., at p. 16.

[142]

The obvious constitutional authority for the law is the power in s. 51 (20) of the Constitution to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". The power extends to corporations already formed but is not confined to these. (See Stephen J. in Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores [9] ; Kathleen Investments (Australia) Ltd. v. Australian Atomic Energy Commission [10] .) The notion that it is confined to corporations already formed is inconsistent with the power of the Parliament to make retrospective laws. The power is, of course, plenary; it enables Parliament to make comprehensive laws covering all internal and external relations of foreign trading and financial corporations. It extends to authorize a "Companies Act" providing for the formation, operation and dissolution of trading and financial corporations. Except in a very artificial sense, the power is not available to deal with the formation of foreign corporations, but no doubt authorizes laws dealing with their operation and dissolution. The power obviously authorizes laws dealing with the trading (or financial) operations of such corporations; for example, Parliament can legislate for the standards of products manufactured or sold by foreign and trading corporations and has done so (see ss. 62 and 63 of the Act). However, the power is not confined to laws dealing with the trading or financial operations of trading or financial corporations (nor to foreign operations of foreign corporations). It extends to laws dealing with industrial relations so that in relation to such corporations Parliament, uninhibited by limitations expressed in s. 51 (xxv), may legislate directly about the wages and conditions of employees and other industrial matters. Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [11] I stated that "The corporations power may be used not only to protect persons who trade with trading corporations, but also to protect trading corporations in regard to those who deal with them" [12] . This aspect of the power is not confined to trading corporations nor to protecting them only from those who deal with them. It enables Parliament to protect trading, financial and foreign corporations from others and to protect others from such corporations. Parliament could, if it wished, enact a comprehensive criminal and civil code dealing with the protection of foreign trading and financial corporations, their property and affairs, and also the protection of others in relation to such corporations. Leaving aside sub-ss. (5) and (6), s. 45D falls easily within this aspect of the corporations power, and is valid.

[149]

It is within the general incidental power (s. 51(xxxix)) or the specific powers in ss. 51 or 52 of the Constitution to provide that one fact or circumstance shall be presumed from the existence of another, provided there is a rational basis for the presumption. Where there is no rational basis for the presumption, then in my opinion Parliament has no power to require a court to act upon the presumption. To do so would be to undermine the judicial power. Clearer still, a law that proof of one fact is deemed to be proof of another fact, so that the party against whom the second fact is alleged is prevented from attempting to disprove it, undermines the judicial power. This does not apply where the second fact is merely another description of, or an inevitable consequence of, the first fact. Sometimes deemed may only mean presumed. Also "deeming" may be used merely as a shorthand method of legislating, so that when the provisions as a whole are considered the vice is only in the form, not the substance. But here the deeming provision in s. 45D(5) and the reference to it in s. 45D(6) create a statutory fiction (see Griffith C.J. in Muller v. Dalgety & Co. Ltd. [15] ), so that the conclusion is to be made even if it is contrary to the fact. In the light of experience of Australian industrial relations, it cannot rationally even be presumed that the conduct in concert of two or more members of an organization of employees is the conduct of the organization. The conduct is often unsupported by or occasionally opposed by the organization. Also such members are often members of other organizations and of industrial and non-industrial bodies which may sponsor the conduct. The fact is that hundreds of thousands of members of federal organizations (of employees) belong to trade or industrial unions registered under State Acts. The effect of s. 45D(5) and (6) is that if two or more members or officers of an organization of employees engaged in prohibited conduct in concert this would be deemed to be the conduct of the organization (unless it could establish that it took all reasonable steps to prevent the participants from engaging in that conduct) exposing it to severe consequences. Such a law is not authorized by the corporations' power or the general incidental power in s. 51(xxxix). The legislative powers in s. 51 are subject to the Constitution, including Ch. III, The Judicature. It is not consistent with the exercise of judicial power that the courts be required to make findings contrary to fact or to adjudge persons guilty or civilly liable upon proof of facts from which a rational conclusion of guilt or liability does not follow but on the basis of a legislative conclusion which is unexaminable judicially. A similar attempt to penalize persons on the basis of legislative or executive opinions unexaminable in the courts was rejected in Australian Communist Party v. The Commonwealth [16] .

[162]

It is, of course, true of any law that obedience to it can be rendered only by persons and sanctions for disobedience can be imposed only upon persons. But that does not mean that every law is a law with respect to the persons or to the classes of persons who are required to obey it. In the present cases the laws cannot be described, in my opinion, as laws which are, either wholly or in part, laws with respect to the corporations mentioned in par. (xx). It is not enough to attract that description that, being expressed in general terms, they apply to those corporations, as well as to other corporations, and to natural persons: see Bank of New South Wales v. The Commonwealth [22] , per Latham C.J. Windeyer J. held the same view [23] . The view of Barwick C.J. was that a law was not supportable by par. (xx) even if it were addressed specifically to corporations mentioned in that paragraph - a question left open by Menzies J. [24] - unless some further nexus appeared. The Chief Justice found a sufficient further nexus in the effect of the law upon the trading activity of such corporations. He said [25] : I ought to observe that it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, from the validity of those sections, that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of a s. 51(xx.). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law. Sections 5(1) and 8(1), in my opinion, were valid because they were regulating and controlling the trading activities of trading corporations and thus within the scope of s. 51(xx.). In Rocla Pipes, it was not necessary to consider a wider ambit of the power than the control of the trading activities of corporations mentioned in par. (xx). It was held that a law directed to those corporations regulating, controlling or dealing with their trading activities is a law with respect to them [26] . It is material to an argument presently to be mentioned that Menzies J. [27] held the power to extend to the governing of the conduct of the business of a trading corporation: I am not prepared to attempt to define the limits of the power conferred by s. 51(xx.). I content myself with saying that a law such as s. 5 of the Australian Industries Preservation Act governing the conduct of its business by a trading corporation formed within the limits of the Commonwealth is within the power of the Parliament by virtue of s. 51(xx.). 1. (1971) 124 C.L.R. 468. 2. (1971) 124 C.L.R., at p. 516. 3. (1948) 76 C.L.R., at p. 186. 4. (1971) 124 C.L.R., at p. 512. 5. (1971) 124 C.L.R., at p. 508. 6. (1971) 124 C.L.R., at pp. 489-490. 7. (1971) 124 C.L.R., at pp. 491, 511, 528. 8. (1971) 124 C.L.R., at p. 511.

[176]

A trading corporation is one whose trading activities "form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation", to adopt the test which Mason J. expressed with the concurrence of Jacobs J. in Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [34] . The business of a trading corporation therefore includes a proportion of trading activity sufficiently significant to identify the corporation as a trading corporation. A provision which protects the business of such a corporation necessarily protects its trading activity, which is the subject matter that has been held to provide a sufficient nexus with the power in earlier cases. It is true that the provision may also protect an additional subject matter, namely, the non-trading business of a trading corporation. But given that the law exhibits those indicia which would give it the character of a law with respect to trading corporations, how does it lose that character by affecting the non-trading business of those corporations? The non-trading business of a trading corporation is nonetheless an aspect of its existence and activity. A law which, discriminating between one or more of the corporations mentioned in par. (xx) and the public at large, protects both the trading and non-trading businesses of trading corporations, wears the appearance of a law with respect to those corporations. It is of the nature of the power that it is a power to make law with respect to corporate persons, not with respect to functions, activities or relationships. The subject matter of activities or relationships which the law affects may be relevant to the question whether the law is truly to be described as a law with respect to corporations mentioned in par. (xx), but the validity of the law cannot be determined as though the power were expressed as a power to make laws with respect to the trading or some other activity of or relationship with corporations mentioned in par. (xx).

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Judgment (184 paragraphs)

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