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

R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation - [1985] HCA 84 - HCA 1985 case summary — Zoe

[69]

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.

[77]

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.

[83]

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] :

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