Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth

The plaintiffs commenced two actions in this Court in which they sought declarations of invalidity respectively of the Builders Labourers' Federation (Cancellation of Registration) Act 1986 Cth ("the Cancellation of Registration Act") and the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 Cth ("the Consequential Provisions Act"). The defendants demurred in each action on the ground that the statute in question is a valid law of the Commonwealth Parliament. At the conclusion of argument on the demurrers the Court allowed the demurrers and gave judgment for the defendants in each action with costs, announcing that it would publish its reasons at a later date.

It is necessary to refer to (a) the events which led to the enactment of the two Acts whose validity was challenged, and (b) other statutory provisions governing the cancellation of the registration of industrial organizations, as a preliminary to discussing the arguments which were presented in support of the plaintiffs' case for invalidity. The events, as we shall outline them, are taken mainly from matters recited in the statements of claim to the extent to which they have been admitted by the defendants.

The first-named plaintiff ("the Federation") has been for many years an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 Cth. By ss. 143(2) and 118A(1) of that Act the Federal Court of Australia is given jurisdiction to hear and determine an application for cancellation of the registration of an organization and to direct the Registrar to cancel the registration, provided that the Court finds that one or more of the many grounds set out in s. 143(1) is made out and that it would not be unjust to so direct. By s. 143A(1) of that Act a Full Bench of the Australian Conciliation and Arbitration Commission ("the Commission") is authorized, on an application by the Minister for Employment and Industrial Relations, to make a declaration that it is satisfied that:

(a) an organization has been or is, or two or more members of an organization have been or are, engaged in industrial action; and

(b) the industrial action has had, is having, or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or of a part of the community.

Where such a declaration is made the Governor-General may direct the Registrar to cancel the organization's registration: s. 143A(2)(a).

Notwithstanding the existence of these general provisions relating to the cancellation of registration of organizations, the Commonwealth Parliament enacted the Building Industry Act 1985 Cth which came into operation on 26 August 1985. Section 4(1) of that Act provides that if, on application by the Minister, the Commission is satisfied that the Federation or a prescribed person has engaged in certain industrial action or conduct, the Commission shall make a declaration that it is so satisfied. By s. 4(4): (a) the committee of management of the Federation; (b) the committee of management of a branch of the Federation; (c) an officer, employee or agent of the Federation in the performance of duties as such an officer, employee or agent; and (d) a member of the Federation in the performance of the function of dealing with an employer on behalf of members of the Federation, are expressed to be prescribed persons.

Where the Commission makes a declaration under section 4, the Minister may, if the Minister is of the opinion that it is desirable to do so having regard to the public interest in securing the prevention and settlement by conciliation and arbitration of industrial disputes extending beyond the limits of any one State or in maintaining peace, order and good government in a Territory -

(a) by order in writing, direct the Registrar to cancel the registration of the Federation under the Conciliation and Arbitration Act; or

(b) by order in writing, terminate, or suspend to the extent specified in the order, any of the rights, privileges or capacities of the Federation or of all or any of its members, as such members, under the Conciliation and Arbitration Act or under the rules of the Federation (other than rules relating to the industry in or in connection with which the Federation is registered under the Conciliation and Arbitration Act or rules relating to the conditions of eligibility for membership of the Federation).

The remaining sub-sections of s. 5 provide for certain consequences which flow from the making of an order by the Minister under s. 5(1), including limitations and qualifications on the entitlement of the Federation to apply to the Commission to be re-registered under s. 132 of the Conciliation and Arbitration Act.

Section 6(1) provides that the powers of the Commission under the Building Industry Act are exercisable by a Full Bench of the Commission and not otherwise. Section 6(3) provides:

(a) the Commission shall give the Federation an opportunity of being heard; and

(b) the Minister, the Federation and any person granted leave to intervene may be represented by counsel or solicitor.

But that sub-section has no application to the making by the Minister of an order under s. 5(1).

The validity of the Building Industry Act was recently upheld in Re Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1] . There the Court refused to grant relief by way of prohibition in relation to an application made on 6 September 1985 by the Minister to the Commission for a declaration under s. 4(1) of the Building Industry Act against the Federation and certain prescribed persons. The Commission concluded its hearing of that application on or about 21 March 1986. On 4 April 1986 the Commission, pursuant to s. 4(1), declared that it was satisfied that the Federation and certain prescribed persons had, between 7 October 1976 and 31 December 1985: (a) engaged in industrial action that constituted a contravention of certain undertakings and agreements; (b) engaged in industrial action in support of claims that constituted a contravention of such undertakings; (c) engaged in industrial action that was inconsistent with the undertakings and agreements already referred to; and (d) engaged in conduct that prevented or seriously hindered the achievement of certain objects of the Conciliation and Arbitration Act.

On 10 April 1986, after the Minister announced that he would introduce new legislation to provide for the immediate deregistration of the Federation, the Federation applied to this Court for orders nisi for (a) a writ of certiorari, directed to the Full Bench of the Commission, to quash the declaration made by the Commission under s. 4(1) of the Building Industry Act; (b) a writ of mandamus to direct the Full Bench to proceed with the hearing and determination of the application by the Minister according to law; and (c) a writ of prohibition, directed to the Minister, to prohibit him from ordering or directing the Registrar of the Commission to cancel the registration of the Federation. On the hearing of that application, the Chief Justice directed the Federation, pursuant to O. 55, r. 2 of the High Court Rules, to make the application for orders nisi by notice of motion to a Full Court at the sittings commencing on 6 May 1986. Although the Federation filed and served a notice of motion in conformity with this direction, the matter has not yet been disposed of.

On 14 April 1986 the Cancellation of Registration Act was enacted and came into operation. It contains a preamble in these terms:

whereas the Parliament considers that it is desirable, in the interest of preserving the system of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, to cancel the registration of The Australian Building Construction Employees' and Builders Labourers' Federation under the Conciliation and Arbitration Act 1904; and goes on to provide by s. 3 that: The registration of The Australian Building Construction Employees' and Builders Labourers' Federation under the Conciliation and Arbitration Act 1904 is, by force of this section, cancelled.

On the same day the Consequential Provisions Act was enacted and came into operation. Section 2 of that Act provides that it should come into operation immediately after the Cancellation of Registration Act comes into operation. The Consequential Provisions Act, as its title implies, makes provision for the effect on the Federation of cancellation of its registration. It contains provisions which are counterparts to those in the Building Industry Act dealing with the same topic, though in some respects the provisions differ: e.g., s. 4(1), (2) and (3) are similar to s. 7(2), (3) and (4) of the Building Industry Act. On the other hand s. 5 of the Consequential Provisions Act, in imposing limitations and qualifications on any future application under s. 132 of the Conciliation and Arbitration Act for re-registration of the Federation, or any non-registered association identified with the functions or membership of the Federation, differs in several respects from the qualifications imposed by s. 5(7), (8), (9) and (10) of the Building Industry Act. Section 5 of the Consequential Provisions Act denies to the Federation or any such non-registered association any entitlement to apply for re-registration unless, inter alia, (a) a period of five years has elapsed from the date of commencement of the Cancellation of Registration Act, and (b) the Commission is satisfied of certain matters.

The plaintiffs submitted that (1) the Cancellation of Registration Act is not a law with respect to conciliation and arbitration for the prevention and settlement of interstate industrial disputes or with respect to any matter incidental thereto, and (2) the Act is either an exercise of the judicial power of the Commonwealth or is an interference with it. The plaintiffs then submitted that the Consequential Provisions Act is invalid as a consequence of the invalidity of the Cancellation of Registration Act and because the limitation of five years on the application for re-registration cannot be justified by reference to s. 51(xxxv) of the Constitution.

The plaintiffs' first submission was that the subject-matter of the legislative power conferred by s. 51(xxxv) is neither industrial disputes nor the prevention and settlement of such disputes. The subject-matter of the power is conciliation and arbitration for the prevention and settlement of interstate industrial disputes, no more and no less. It follows, as Isaacs J. pointed out in Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia [2] , that "even Parliament shall not itself decide the terms upon which an industrial dispute is to be settled". All this may be accepted without yielding the conclusion that the Cancellation of Registration Act stands outside the reach of the power. That Act simply excludes the Federation from participating in the general system of conciliation and arbitration for the prevention and settlement of disputes for which the Conciliation and Arbitration Act provides.

That power, which enables the Parliament to legislate for the registration of organizations as part of the procedure or machinery of conciliation and arbitration for the prevention and settlement of interstate industrial disputes, equally enables the Parliament to cancel the registration of all or any organizations, if that seems to the Parliament to be desirable. This is because registration of organizations of employers and employees is a central element in the system of conciliation and arbitration which the Conciliation and Arbitration Act established for the prevention and settlement of interstate industrial disputes. It follows that a law which cancels or withdraws the registration of such an organization, like a law which authorizes the registration of an organization, is a law which operates on the subject-matter of the power, notwithstanding that its consequence is to deny to the particular organization a capacity to participate in the system. 1. (1985) 159 C.L.R., at p. 650.

Accordingly, the Cancellation of Registration Act is an exercise of the power conferred by s. 51(xxxv), without there being any occasion to rely on the recital in the preamble to the statute to bring it within the ambit of the legislative power.

The plaintiffs' principal submission was that the Cancellation of Registration Act is invalid because it is an exercise of the judicial power of the Commonwealth or, alternatively, because it involves an interference with the judicial power. The Cancellation of Registration Act, if valid, abrogates the function which would otherwise have been performed by this Court in the proceedings pending in the Court pursuant to the Federation's notice of motion for the orders nisi previously mentioned. It is for this reason that the plaintiffs contend that the Cancellation of Registration Act is an exercise of judicial power and that it amounts to an interference with this Court's exercise of the power, an exercise which had been invoked by the Federation before that Act became law. The plaintiffs pointed to the statement in Re Ludeke [4] : "that the deregistration of an organization under the Conciliation and Arbitration Act can be achieved either by the exercise of judicial power or by the exercise of administrative power". But this statement, as its context demonstrates, does no more than assert, in accordance with the authorities, that Parliament may authorize deregistration under the Conciliation and Arbitration Act by the exercise of either judicial or administrative power. The statement has nothing to say about the deregistration of an organization by means of a legislative act, which involves no determination by a court or tribunal as to the conduct of the organization, outside the procedure for deregistration established by the Conciliation and Arbitration Act. Even if registration under that Act amounts to an acceptance or endorsement that the organization is a fit and proper organization to participate in the system of conciliation and arbitration, there is nothing in the nature of participation in that system or in deregistration which makes deregistration uniquely susceptible to judicial determination, as the discussion in Re Ludeke reveals. Nor is there anything in the nature of deregistration which makes it unsusceptible to legislative determination. Just as it is entirely appropriate for Parliament to select the organizations which shall be entitled to participate in the system of conciliation and arbitration, so it is appropriate for Parliament to decide whether an organization so selected should be subsequently excluded and, if need be, to exclude that organization by an exercise of legislative power.

The view, discussed by Dixon C.J. and Williams J. in Deputy Federal Commissioner of Taxation v Brown [5] , that under the Constitution liability for tax cannot be imposed upon a subject without leaving open to him some judicial process by which he may show that he is not taxable, or not taxable in the sum assessed, has no application here. That view proceeds on the basis that a law imposing liability to an incontestable tax would be invalid because it would confer on an administrator power to determine conclusively issues on which the constitutional validity of a law with respect to taxation depends: see Deputy Commissioner of Taxation v Hankin [6] ; Australian Communist Party v The Commonwealth [7] ; MacCormick v Commissioner of Taxation [8] ; and Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [9] . An alternative basis for the proposition discussed by Dixon C.J. and Williams J. might be that a law which authorizes an administrator to determine conclusively a taxpayer's existing liability to tax is inconsistent with Ch. III of the Constitution: Zines, The High Court and the Constitution (1981), pp. 160-162, esp. fn. 5. Neither basis provides any support for the contention that the provisions in Ch. III governing the judicial power prevent Parliament from exercising its legislative power so as to abrogate or alter rights and liabilities which would otherwise be subject to a judicial determination.

1. (1958) 100 C.L.R. 32, at pp. 40-41, 52. 2. (1959) 100 C.L.R. 566, at pp. 576-577. 3. (1951) 83 C.L.R. 1. 4. (1984) 158 C.L.R. 622, at pp. 639-641, 658. 5. (1985) 158 C.L.R. 678, at pp. 684-686.

It is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution.

Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action. (Reg. v Humby; Ex parte Rooney [10] .) So, in Nelungaloo Pty. Ltd. v The Commonwealth [11] , the validity of the Wheat Industry Stabilization Act (No. 2) 1946 Cth was upheld, notwithstanding that the Act validated an order for the acquisition of wheat, the validity of which was in issue in the proceedings. 1. (1973) 129 C.L.R. 231, at p. 250. 2. (1948) 75 C.L.R. 495, esp. at pp. 503-504, 579-580.

It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. Liyanage v The Queen [12] was such a case where the legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners.

Here the situation is very different. The Cancellation of Registration Act does not deal with any aspect of the judicial process. It simply deregisters the Federation, thereby making redundant the legal proceedings which it commenced in this Court. It matters not that the motive or purpose of the Minister, the Government and the Parliament in enacting the statute was to circumvent the proceedings and forestall any decision which might be given in those proceedings.

The consequence is that the Cancellation of Registration Act is a valid law of the Commonwealth Parliament. Subject to a consideration of one final argument advanced by the plaintiffs, it follows that the Consequential Provisions Act is also valid.

The final argument is based on s. 5(1)(a) of that Act which provides that, notwithstanding s. 132 of the Conciliation and Arbitration Act, a non-registered association (an expression so defined as to include the Federation) is not entitled to be re-registered for a period of five years after the commencement of the Cancellation of Registration Act. The submission was that a ban on participation in the system of conciliation and arbitration for an arbitrary period of five years cannot be supported. What we have already said about the scope of the legislative power conferred by s. 51(xxxv) of the Constitution is an answer to the submission. Parliament may in the exercise of the power determine for what time a non-registered association is to be excluded from registration.

It is for the foregoing reasons that the demurrers were allowed and judgment given for the defendants in the two actions with costs.