R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation

The question for decision in the two matters now before the Court is whether the Building Industry Act 1985 Cth ("the Act") is valid. The Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation") is an organization registered under the Conciliation and Arbitration Act 1904 Cth, as amended, and is the "Federation" within the meaning of the Act - see s. 3(1) of the Act. On 6 September 1985 the Minister for Employment and Industrial Relations of the Commonwealth made application to the Australian Conciliation and Arbitration Commission ("the Commission") for a declaration pursuant to s. 4(1) of the Act that the Commission is satisfied that the Federation has done one or more of the things specified in the application and that a prescribed person within the meaning of s. 4(4) of the Act has done, or two or more prescribed persons have done, one or more of the things so specified. The application specified (with particulars) all of the things set out in pars. (a), (b) and (c) of s. 4(1) of the Act to which reference will shortly be made. The Commission has commenced to hear the application but has not yet concluded the hearing. In the first matter now before the Court, the prosecutors - the Federation and one of its members - seek a writ of prohibition prohibiting the members of the Commission from further proceeding to deal with the application on the ground that the Act is invalid. In the second matter the plaintiffs - the same persons as the prosecutors and hereinafter so described - seek a declaration that the provisions of the Act are ultra vires and void and the defendants have demurred to the Statement of Claim.

The argument on behalf of the prosecutors sought to attack almost every provision of the Act. To the suggestion that so wide an attack was premature, since some of the provisions sought to be impugned might never be invoked, the reply was made that the whole Act represents a single scheme and that none of the parts is severable. To understand the arguments advanced it will be necessary to set out many of the provisions of the Act in full, although it will be seen that it will not be necessary to examine the validity of each of them.

The power and duty of the Commission to make a declaration is dealt with by s. 4 of the Act which provides as follows:

(1) If, on application by the Minister, the Commission is satisfied that -

(a) the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in industrial action that constituted a contravention of, was in support of a claim that constituted a contravention of, or was inconsistent with the intent of -

(i) an undertaking given to the Commission, to the Registrar or to the Federal Court of Australia on behalf of the Federation;

(ii) an undertaking relating to the performance of work, to claims concerning the terms and conditions of employment, or to the prevention or settlement of industrial disputes, given on behalf of the Federation to a party to a proceeding before the Commission, the Registrar or the Federal Court of Australia to which the Federation was a party; or

(iii) an agreement relating to the performance of work, to claims concerning the terms and conditions of employment or to the prevention or settlement of industrial disputes in the building industry or a part of the building industry;

(b) the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in conduct that prevented or seriously hindered the achievement of an object of the Conciliation and Arbitration Act; or

(c) the Federation or a prescribed person has, whether before or after the commencement of this Act, engaged in conduct that is inimical to the prevention and settlement of industrial disputes by means of conciliation and arbitration,

the Commission shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing.

(2) In relation to a time before the commencement of this Act, being a time after the registration under the Conciliation and Arbitration Act of the organization known as "The Australian Building Construction Employees' and Builders Labourers' Federation" was cancelled and before the association that had been registered as that organization again became registered as an organization under that Act, the reference in sub-paragraph (1)(a)(i) to an undertaking given on behalf of the Federation shall be construed as a reference to an undertaking given on behalf of that association.

(3) For the purposes of this section, any industrial action or any conduct that has been or is engaged in by members of the Federation shall be deemed to have been engaged in by the Federation if -

(a) it is proved that the Federation or a prescribed person instigated or encouraged that industrial action or that conduct; or

(b) in a case to which paragraph (a) does not apply - the Federation does not prove that the Federation or a prescribed person took all reasonable steps to prevent that industrial action or that conduct.

(4) For the purposes of this section, the person or group of persons referred to in any one of the following paragraphs constitutes or constitute a prescribed person:

(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;

(d) a member of the Federation in the performance of the function of dealing with an employer on behalf of members of the Federation.

(5) In the hearing of an application by the Minister under this section, the Commission may have regard to -

(a) any evidence given or statements made in any other proceedings before the Commission, whether constituted as a Full Bench or otherwise, and any findings made by the Commission in any such proceedings;

(b) any evidence given or statements made in any proceedings before the Registrar and any findings made by the Registrar in any such proceedings;

(c) any evidence given in any proceedings before the Federal Court of Australia and any findings made by that Court in any such proceedings; and

(d) any evidence given in any proceedings of a Royal Commission that was appointed to inquire into the activities of the Federation and any report made by such a Royal Commission.

(6) Where an application is made by the Minister under this section, the Commission shall hear and determine the application as quickly as is appropriate having regard to all the circumstances.

The expression "industrial action" is given a wide meaning by the definition in s. 3(1) and by s. 3(2) and s. 3(3) but it is enough to say that it includes a failure or refusal to attend for work, or to perform work, and action that hinders or prevents a person from performing work, even if the terms and conditions of the work are not prescribed by any award of the Commission.

The principal consequences of the making of a declaration appear from s. 5 which provides as follows:

(1) 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).

(2) Where the Minister makes an order under paragraph (1)(b) in relation to the Federation, the Minister may make such further order or orders in writing as is or are necessary to give effect to the first-mentioned order.

(3) Where the Minister makes an order or orders under paragraph (1)(b), or under that paragraph and under sub-section (2) -

(a) the Registrar shall forthwith consider whether any alterations need to be made to 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) for the purpose of giving effect to the order or orders; and

(b) if the Registrar determines that any such alterations need to be made, the Registrar shall certify in writing the alterations so determined and, upon the Registrar so certifying -

(i) those rules shall be deemed to be altered accordingly; and

(ii) no further alterations to those rules may be made if the making of those alterations would be inconsistent with the order or orders made by the Minister.

(4) Except for the purposes of the application of the provisions of paragraph (1)(b) or of sub-section (2) or (3) in or in relation to a Territory, a reference in those provisions to the Federation shall be construed as a reference to the organization registered under the Conciliation and Arbitration Act by the name "The Australian Building Construction Employees' and Builders' Labourers Federation" or, if the name of that organization is changed, that organization under the new name.

(5) The making of an order or orders by the Minister in relation to the Federation under paragraph (1)(b) does not prevent the Minister from making an order in relation to the Federation under paragraph (1)(a).

(6) Where the Minister, by order under sub-section (1), directs the Registrar to cancel the registration of the Federation under the Conciliation and Arbitration Act, the Minister may, by that order or by a later order in writing, specify a condition or conditions with which the Federation is required to comply before it may be registered under section 132 of the Conciliation and Arbitration Act.

(7) Notwithstanding anything in section 132 of the Conciliation and Arbitration Act, where the registration of the Federation is cancelled in accordance with a direction given by the Minister under sub-section (1), the Federation is not entitled to be registered under section 132 of the Conciliation and Arbitration Act unless -

(a) if the Minister has, in accordance with sub-section (6), specified a condition or conditions in relation to the Federation - the Minister declares, by order in writing, that that condition has, or those conditions have, been complied with; or

(b) in a case to which paragraph (a) does not apply - the Minister declares, by order in writing, that the Federation may apply to be registered under section 132 of the Conciliation and Arbitration Act.

(8) Where a declaration has been made under paragraph (7)(a) or (b), the Minister may also, by order in writing, declare that, for the purpose of any application by the Federation to be registered under section 132 of the Conciliation and Arbitration Act, a provision or provisions of the Conciliation and Arbitration Act, or of regulations in force under that Act, specified in the order does not or do not apply to or in relation to the Federation.

(a) the registration of the Federation is cancelled in accordance with a direction given by the Minister under sub-section (1);

(b) after the cancellation, the Federation becomes registered as an organization under section 132 of the Conciliation and Arbitration Act;

(c) the Minister has, in accordance with sub-section (6), specified a condition or conditions in relation to the Federation; and

(d) on application by the Minister, the Commission is satisfied that the Federation has ceased to comply with that condition or any one or more of those conditions,

the Commission shall make a declaration that it is so satisfied and cause the declaration to be recorded in writing.

(10) Where a declaration is made by the Commission under sub-section (9), sub-section (1) has effect in like manner as it has effect in relation to a declaration made by the Commission under section 4.

(11) A person shall not contravene or fail to comply with an order made by the Minister under paragraph (1)(b) or sub-section (2).

(12) The Federal Court of Australia may, upon application by the Minister, grant such injunctions as it thinks necessary for the purpose of ensuring compliance with this section.

Section 132 of the Conciliation and Arbitration Act provides for the registration of organizations.

Section 6 of the Act is a procedural section and its provisions do not now concern us.

Section 7 provides for the consequences of the cancellation of the registration of the Federation, if that is effected under s. 5. It provides:

(1) If the registration of the Federation under the Conciliation and Arbitration Act is cancelled under section 5, the following provisions of this section have effect.

(2) Sub-section 143(5) of the Conciliation and Arbitration Act does not apply in relation to the Federation or to its members but sub-sections 143(4) and (6) of that Act apply.

(3) Any award that would, but for this sub-section, apply to the Federation or to its members ceases to have any force or effect in relation to the Federation and its members.

(4) The Federation is not capable of being a party to, and shall not be permitted to intervene in, a proceeding before the Commission and is not capable of being a party to an award made by the Commission and the Commission does not have any powers under the Conciliation and Arbitration Act in relation to an industrial dispute within the meaning of that Act in so far as that dispute involves members of the Federation.

(5) A person or an organization or association of employees is not entitled to be represented by an officer, employee, agent or member of the Federation in any proceedings before the Federal Court of Australia, the High Court, the Commission or the Registrar other than proceedings by the Federation for registration under section 132 of the Conciliation and Arbitration Act.

Section 143(5) of the Conciliation and Arbitration Act, which by force of s. 7(2) of the Act does not apply in relation to the Federation or its members, deals with the cessation of entitlements under awards; s. 143(4) provides that the cancellation shall not relieve the organization or any members thereof from any penalty or liability incurred prior to the cancellation, and s. 143(6) provides as follows: Upon the cancellation of the registration of an organization, the organization shall cease to be an organization and a corporation under this Act, but shall not by reason of the cancellation cease to be an association. The property of the organization shall, subject to any order which the Court, upon application by a person interested, may make with respect to the satisfaction of the debts and obligations of the organization out of that property, be the property of the association and shall be held and applied for the purposes of the association in accordance with the constitution and rules of the organization insofar as they can be carried out or observed notwithstanding the deregistration of the organization.

It is unnecessary to set out in full the provisions of ss. 8, 9, 10 of the Act which apply when the Commission has made a declaration under s. 4 or under s. 5(9). By s. 8 the Minister is empowered to declare by order in writing that the rules of the Federation relating to the industry in or in connexion with which the Federation is registered and to the conditions of eligibility of the Federation shall cease to have any effect in relation to work in a part or parts of Australia specified in the order; thereupon the Registrar shall make consequential alterations to the rules, the Federation shall cease to be entitled to make any claims or represent any members in that part or those parts of Australia and after twenty-eight days any award otherwise applicable shall cease to apply to the Federation. By ss. 9 and 10 the Minister, or if he certifies that he does not propose to make any orders, the Commission, may allocate coverage of the work previously covered by the Federation to other organizations.

No particular reliance is placed on ss. 11 to 15 of the Act, whose provisions need not be described.

The validity of the Act was attacked on three main grounds. First, it was said that the Act is not within the powers conferred by s. 51(xxxv) and (xxxix) of the Constitution.

It is firmly settled that it is incidental to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of one State to provide for the registration as organizations and consequential incorporation of associations of employees or employers which may thereby be enabled the better to play a part in the processes of conciliation and arbitration. It follows from the fact that the Parliament may make laws for the registration of such organizations and for the effect of registration that it may regulate and control the organizations which it has created and may provide for the cancellation of the registration for which its own statutes have provided. The width of the power of the Parliament with regard to the cancellation of the registration of organizations registered under the Conciliation and Arbitration Act is indicated by the judgments in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1] . In that case this Court upheld the validity of s. 60 of the Conciliation and Arbitration Act 1904-1921 Cth which gave power to the Commonwealth Court of Conciliation and Arbitration to order the registration of an organization to be cancelled; the section was the precursor of the present s. 143. Isaacs J. said [2] , in a passage which answers a number of the prosecutors' contentions in the present case:

The creation and equipment of representative organizations both of employers and employees is an incident to the power in s. 51(xxxv.) of the Constitution. They are instruments for the more effective exercise of the power. Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, refashioned, or abolished in any manner indicated. The step of establishing an organization may be retraced at any point and, for any reason declared by the Act, by any officer in whom Parliament places confidence for the purpose and to whom it gives the necessary discretion. The function created by s. 60 is not judicial in the constitutional sense. In the same case Starke J. said [3] : But if the Parliament has authority under the arbitration power to permit the registration and incorporation of organizations, then that power necessarily extends to the control and regulation of those organizations, and to the cancellation or suspension of the registration or incorporation in such manner and by such means as Parliament provides. Provisions to that end are in no sense an exercise of the judicial power of the Commonwealth That principle of that decision has been followed and applied in a number of cases of which the most recent include Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union [4] , and Reg. v. Sweeney; Ex parte Northwest Exports Pty. Ltd. [5] . In the latter case Mason J. indicated that the power of the Commonwealth to regulate the activity of organizations was not without limit and, in a passage on which counsel for the prosecutors placed some reliance said [6] : Parliament cannot impose prohibitions or limitations on a registered organization which are inconsistent with the object of the legislative power, that is, the prevention and settlement of interstate industrial disputes by conciliation and arbitration. But, subject to the Constitution, Parliament can in my opinion prohibit or inhibit a registered organization from engaging in activities which are or may well be detrimental to the object of the constitutional power or are immaterial to that object, whether it does so by denying capacity to the organization or by prohibiting it from engaging in certain activities. 1. (1925) 36 C.L.R. 442. 2. (1925) 36 C.L.R., at pp. 453-454. 3. (1925) 36 C.L.R., at p. 463. 4. (1980) 144 C.L.R. 462, at p. 471. 5. (1981) 147 C.L.R. 259, at pp. 272-274. 6. (1981) 147 C.L.R., at pp. 273-274.

In the argument advanced on behalf of the prosecutors, great emphasis was placed on the width and lack of definition of the power which the Act confers. It was pointed out that the power of the Commission to make a declaration depends, not on the existence of objective facts, but on the satisfaction of the Commission. The matters as to which the Commission is to be satisfied might, it was said, have been trivial incidents which occurred long ago. They do not necessarily involve breaches of awards made by, or undertakings given to, the Commission. The conduct complained of may not have been that of the Federation, but may be deemed to have been so, in the absence of proof that a member of the Federation who may not have been an officer, employee or agent took all reasonable steps to prevent the conduct: see s. 4(3)(b) and s. 4(4)(d). The satisfaction of the Commission may be reached on evidence given or statements made in other proceedings to which the Federation was not a party: see s. 4(5). If the Commission makes a declaration, the Minister has a wide discretion in the exercise of which he may decide to take action under ss. 5, 7, 8 and 9 and there will be no necessary correspondence between the gravity of the matters of which the Commission is satisfied and the stringency of the measures the Minister may take.

The validity of some of these provisions was individually attacked, but before turning to consider the nature of those particular challenges, it is necessary to consider the more general argument directed to the validity of the Act as a whole. This argument took as its starting point the proposition that the Act deals with a subject which is not at the heart of the power given by s. 51(xxxv) but only incidental to it, and that in those circumstances the width of the discretion allowed by the Act is important in assisting to discover the true character of the law: see Murphyores Incorporated Pty. Ltd. v. The Commonwealth [7] . The object of the Act was said (with some exaggeration) to be to give the Minister an unfettered power permanently to deny the Federation its representative character and to strip it of its assets. Then it was said that a law which had such a purpose, and which allowed the purpose to be achieved by the exercise of such wide discretionary powers, was not "appropriate" or "plainly adapted" to the constitutional end described in s. 51(xxxv). Those expressions are of course taken from a famous passage in McCulloch v. Maryland [8] , which has often been quoted in this Court. It may be observed, in passing, that when Marshall C.J. used those expressions he was enunciating a broad general principle of constitutional interpretation, in accordance with which, when any power is expressly granted, there is included in the grant, by implication, every power necessary to effectuate the main purpose of the grant: see O'Sullivan v. Noarlunga Meat Ltd. [9] and Grannall v. Marrickville Margarine Pty. Ltd. [10] . Marshall C.J. was not intending to suggest that the Court was concerned with the necessity, utility, wisdom or justice of the legislation made in exercise of the power.

1. (1976) 136 C.L.R. 1, at p. 19. 2. (1819) 4 Wheat. 316, at p. 421. 3. (1954) 92 C.L.R. 565, at pp. 597-598. 4. (1955) 93 C.L.R. 55, at p. 77.

The argument that the Act is not within the power conferred by s. 51(xxxv) is impossible to sustain in the light ofAustralian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [11] and the later cases which are in line with that decision. 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. The Parliament is not required to preserve or permit continued existence of an organization simply because its legislation has permitted the organization to come into existence. Nor is the power of the Parliament limited to providing for the cancellation of the registration of an organization whose activities are inimical to conciliation and arbitration. For example, the Parliament could validly provide that an organization which engaged in criminal activities might be deregistered. The power given by the Act to the Minister to direct the cancellation of the registration of the Federation is not unfettered; it depends upon the Commission making a declaration that it is satisfied, after a hearing, of any of the matters described in s. 4 of the Act. Those matters involve either conduct which might reasonably be regarded as harmful, to a greater or lesser degree, to the procedure for conciliation and arbitration provided by the Conciliation and Arbitration Act, or harmful to the cause of industrial peace and order generally. There is nothing in s. 4 which reveals that the power is intended to be exercised for purposes inconsistent with the object of the legislative power conferred by s. 51(xxxv).

Section 5 of the Act does not have the effect of enabling the Minister to strip the Federation of its assets. The Minister may direct the Registrar to cancel the registration of the Federation (s. 5(1)(a)) or he may terminate or suspend any of the rights, privileges or capacities of the Federation or its members under the Act or under the rules of the Federation (s. 5(1)(b)). Plainly the rights, privileges and capacities referred to in s. 5(1)(b) are those which belong to the Federation as an organization and to its members as members of such an organization; the paragraph is not intended to affect the rights which the Federation has as an association, apart from those which result from its registration, or those which the members have as individuals and which do not result from their membership of the organization. The provisions of s. 7(2) of the Act and those of s. 143(6) of the Conciliation and Arbitration Act reinforce the view that the Act does not empower the Minister to affect the organization except as an organization registered under the Conciliation and Arbitration Act, or to affect the property of the organization except to the extent necessary to provide for payment of its debts and liabilities. Section 5(1)(b) enables the Minister to make an order which has a less drastic effect than deregistration, but if necessary, after such an order has been made, the Minister can still order the registration to be cancelled (s. 5(5)). None of these provisions is beyond the power of the Parliament. Further it was competent for the Parliament to provide that if the registration of the Federation is cancelled, the Federation, and its members as such, cease to be entitled to the benefits which they would otherwise have had under the Conciliation and Arbitration Act; s. 7(3) is a valid provision of this kind.

Counsel for the prosecutors invoked the principle stated by Fullagar J. in Australian Communist Party v. The Commonwealth [12] that "the validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law in question itself depends for its validity". This principle, which is sometimes expressed in the maxim "the stream cannot rise above its source", is of no assistance to the Federation in the present case. The Commission, acting under s. 4 of the Act, is not required to find any jurisdictional fact; in other words, the existence of the matters to be found by the Commission under s. 4 does not provide the constitutional basis for the legislation. Although the Act does not operate directly upon the subject-matter described in s. 51(xxxv), it is, for the reasons given, incidental to the main purpose of the power conferred by that paragraph and its validity does not depend on the correctness of the findings made by the Commission for the purposes of s. 4.

A particular challenge was made to the deeming provisions of s. 4(3)(b), and reliance was placed on Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. [13] , in which a majority of the Court held the deeming provisions of s. 45D(5) of the Trade Practices Act 1974 Cth to be invalid. The reasoning accepted by the majority in that case, so far from supporting the prosecutors' argument, shows that the argument cannot succeed. The effect of s. 45D(5) was described by Mason J. in that case as follows [14] :

The effect of sub-s. (5) is that when two or more persons who are members or officers of a trade union engage in conduct in concert with one another the trade union is deemed to engage in that conduct in concert with the participants and to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct. It was sought to support the validity of s. 45D(5) as a law made with respect to corporations, under s. 51(xx) of the Constitution. Mason J., with whom Stephen and Aickin JJ. concurred on this question, said [15] : In substance s. 45D(5) is a law which makes a trade union responsible for a boycott affecting a corporation when that boycott is imposed by members or officers of the trade union, a responsibility which the trade union can only avoid if it demonstrates it has taken the action mentioned in the sub-section. As such it is a law about trade unions; to me it has a very remote connexion with corporations, a connexion so remote that the provision cannot be characterized as a law with respect to corporations of the relevant class. In my opinion it is beyond power. Brennan J. said [16] : The corporations power does not support a law which makes an organization liable for conduct in which it has not engaged and which it has not counselled, aided or abetted. Section 4(3) of the Act is a law which, for the purposes of s. 4, imposes liability on an organization for the acts of its members in certain circumstances. It is open to the Parliament to consider that the existence of an organization will be detrimental to the purposes of s. 51(xxxv) if the organization fails to exercise proper control over its members in the conduct of their industrial relations. The provisions of s. 4(3) form part of the scheme for the control, and if necessary the deregistration, of the Federation and are valid within the principles already discussed. 1. (1982) 150 C.L.R. 169. 2. (1982) 150 C.L.R., at p. 210. 3. (1982) 150 C.L.R., at p. 211. 4. (1982) 150 C.L.R., at p. 223.

Then it was said that s. 5(8) is an invalid delegation of power. It is not necessary, for present purposes, to discuss the questions raised by the cases on which the prosecutors particularly relied: Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [17] and Giris Pty. Ltd. v. Federal Commissioner of Taxation [18] . The provisions of s. 5(8) will have a practical operation only if, after the registration of the Federation has been cancelled, the Federation is able (under s. 5(7)) to apply and does apply to be registered again. The provisions of s. 5(8) are of no importance at the present stage of the proceedings and if invalid are plainly severable from the rest of the Act; their omission will not give any different operation to the provisions of the Act which remain.

1. (1931) 46 C.L.R. 73. 2. (1969) 119 C.L.R. 365.

It was said that s. 5(11) enables the Minister to create new and undefined criminal offences. That of course is not so. The section does no more than provide a sanction to enforce obedience to orders which the Minister is empowered to make by s. 5(1)(b) and s. 5(2).

For these reasons the validity of s. 5(8) of the Act need not be considered but the contention that the provisions of the Act are not within the power conferred by s. 51(xxxv) must otherwise fail.

The second main submission made in challenging the validity of the Act is that the Act empowers the Minister to acquire property from the Federation on other than just terms. There is no substance in this submission. It has already been pointed out that the powers given by s. 5(1)(b) and s. 5(2) do not permit the Minister to order the Federation to hand over its property. It is, however, said on behalf of the prosecutors that the Minister, acting under s. 5, might effectively remove a member of the Federation from an office which he held in the Federation and thus terminate existing contractual rights. However, even if that be so, there is nothing in the Act that provides for the acquisition of those rights - they may be extinguished, but not acquired. A further submission was based on the fact that orders made under ss. 8, 9 and 10 of the Act may have the result that employees now members of the Federation will cease to be eligible for membership of that organization and will instead become eligible for membership of other organizations. This, it was said, deprives the Federation of its right to have members and of the consequent right to receive very substantial amounts (said to be millions of dollars) as membership fees, and gives those rights to others. It is impossible to agree that an organization has property in its members, or that there is acquisition of property when the members of one organization are rendered ineligible to remain as members of that organization but are made eligible to join another. The case is so clear that it is unnecessary to consider the authorities in which the effect of s. 51(xxxi) of the Constitution has been discussed.

The final contention on behalf of the prosecutors was that the provisions of s. 4 of the Act invalidly invest the Commission with part of the judicial power of the Commonwealth. There is no doubt 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. Thus the power to direct the cancellation of the registration of an organization which was given to the Commonwealth Court of Conciliation and Arbitration by s. 60 of the Conciliation and Arbitration Act 1904-1921 Cth was held not to be judicial (Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [19] ) whereas the same power conferred on the Commonwealth Industrial Court by the amended provisions of s. 143 of the Conciliation and Arbitration Act 1904-1973 Cth was held to be judicial: Reg. v. Joske; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [20] . In the present case Mr Castan for the prosecutors showed that s. 4 of the Act has a number of features which are commonly found in provisions conferring judicial power. The Commission is required to make a declaration, which is a form of relief commonly given by courts, if it is satisfied that any one of a number of specified criteria has been met. It acts only on an application, and after a hearing. In determining whether it has the requisite satisfaction, it may have to decide questions of fact and possibly of mixed law and fact, and may have to consider whether there has been a breach of an undertaking given to a federal court - i.e., whether there has been a contempt of court. On the other hand, the declaration made by the Commission has of itself no effect on legal rights or remedies or indeed any other effect unless the Minister decides to act upon it. The only function of the declaration is that it satisfies a condition precedent to the exercise of discretion by the Minister under s. 5. The power exercisable by the Minister under s. 5 is plainly administrative in character, and the purpose of the declaration is to enable the Minister to exercise that power if he decides to do so. It is not a usual function of the judicial power to act as a mere adjunct to the executive power. The facts that the Commission has no power to enforce its determination and that its determination is an adjudication of a preliminary question upon which an exercise of administrative power depends, strongly support the view that the power is not judicial: see Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [21] , per Owen J., and per Walsh J. [22] . A characteristic of the judicial power is that "it is concerned with existing rights, that is, those which the parties actually have at the inception of the suit": see United Engineering Workers' Union v. Devanayagam [23] , cited in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [24] , per Windeyer J. That is not universally so, but it is true as a general rule. In Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd., Kitto J. said [25] :

Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. The power given by s. 4 is not of that kind. Moreover, the character of the body on which the power is conferred may assist in determining whether the power is judicial or non-judicial: see Reg. v. Quinn; Ex parte Consolidated Food Corporation [26] and Reg. v. Hegarty; Ex parte City of Salisbury [27] . The Commission, on which the power is conferred by s. 4, is not a judicial body. 1. (1925) 36 C.L.R. 442. 2. (1974) 130 C.L.R. 87. 3. (1970) 123 C.L.R. 361, at p. 408. 4. (1970) 123 C.L.R., at pp. 416-417. 5. [1968] A.C. 356, at p. 384. 6. (1970) 123 C.L.R., at p. 396. 7. (1970) 123 C.L.R., at p. 374. 8. (1977) 138 C.L.R. 1, at p. 6. 9. (1981) 147 C.L.R. 617, at p. 628.

Although it may often be difficult to draw the boundary between judicial and administrative power, it is clear, for the reasons given, that the power conferred by s. 4 of the Act is not judicial.

The challenge to the validity of the relevant provisions of the Act must fail. The order nisi should be discharged and the demurrer should be allowed.