Federated Ironworkers' Association of Australia v Commonwealth

Cons

R V Sweenyyy;

'SppI

AppI

Expl R V Oh

ExpCourt of Con­Vtctona, StateChurchill Re Churchill, Re

di i Ath; Ex p

(2001)186

(2001) 109

NonhivesIJf^Porl

Workers Union

ALRll

FCR 104

Australia

^mS) 90 FCR

Union (__ ^(.19%) 138

89 CLR 636

ALR129

84 C.L.R.]OF AUSTRALIA.

265

[HIGH COURT OF AUSTRALIA.]

FEDERATED IRONW ORKERS’ ASSOCIA-I

^

TION OF AUSTRALIA . . .

;

AND

THE COMMONWEALTH AND OTHERS .

D e f e n d a n t s .

Constitutional Law {Cth.)—Industrial arbitration—Industrial organization—Office­

H. C. OB' A.

bearers—Election—Power of Industrial Registrar to undertake—The Constitution

1951.

(63 & 64 Yict. c. 12), s. 51 (xxxv.), {xxxix.)—Conciliation and Arbitration Act

1904-1951 {No. 13 of 1904—iVo. 18 of 1951), s. 96m.

Sydney,

Nov. 12, 13,

Section 96m (1)-(6) of the Conciliation and Arbitration Act 1904-1951,

19.

which, subject to certain conditions precedent, authorizes the Industrial

Dixon,

Registrar to undertake the conduct of an election of office-bearers of an

McTiernan,

WUliams,

organization, or a branch thereof, registered under the Act, is a valid exercise

Webb,

of the powers conferred by pars, (xxxv.) and (xxxix.) of s. 51 of the Con­

FuUagar and

Kitto

JJ .

stitution.

D e m u r r e r s .

In an action brought in the High Court by the Federated Iron­ workers’ Association of Australia against the Commonwealth, J. E. Taylor, the Industrial Registrar of the Commonwealth Court of Conciliation and Arbitration, and J. H. Martin, the Common­ wealth Electoral Officer for the State of New South Wales, the statement of claim showed, inter alia, as follows :—

The plaintiff was an organization duly registered under Part VI. of the Conciliation and Arbitration Act 1904-1951 and governed by the rules known as the Constitution and Rules of the Federated Ironworkers’ Association of Australia. On 27th September 1951 Taylor gave to the plaintiff a notice to the effect that pursuant to s. 96m of the said Act he had received a request, duly made, from a t least five hundred members of the plaintiff’s branch for the conduct under s. 96m of the election to be held in November 1951, for offices in the branch, and he advised that, pursuant.

2(>()

HIGH COURT

[1951.

H. C. 01.' A. to isiili-.s. (5) ol s. 90m, he liiid arrunged for tlie conduct of the

l!)f)l.eh'ction, in I'elation to certain Hpccified offices, by Martin. Ry I ' H U H U A ’I'HDthe jilaintin s constitution and rules the election for those offices

I k o n -

is re((uircd to be held annually between 15th November and 50th

VVOHK KU.s’

Asnoc.iationNovenib('r and to be cojiduetcd by a returning officer and two

OK

scrutimHU's a.|)|)ointed by the branch, and provision is made thereiii

Ah.sthama

V.for the due conduct of the election, which rules were inconsistent

Til 1Cwith the provisions of the said Act, and regulations and notice.

( ’OMMON-

WK Al . T H .Marlin, and his servants and agents, purporting to act in accordance

with the Act, regulations and notice, had wrongfully entered and trespassi'd upon the plaintiff's premises and demanded to inspect a list and other documents belonging to the ])laintiff or its members, and had wrongfully prevented the proper officers of the plait'tiff from conducting the election to those offices in accordance with the ])laintiff"s constitution and rules and threatened to, and would, unless restrained by the Court, continue to do so. On 2(>th October 1951, pursuant to s. 9bM ((5), Martin gave dircctioirs to the plaintiff in resiiect of the conduct of the election, requiring the performance of certain s])ecilied acts, matters and things, and prohibiting the performance of certain other acts, matters and things. It was further alleged in the statement of claim that s. 9(>m and each of the jirovisions thereof, and the regulations ])urporting to be made thereunder, were beyond the powers of the Commonwealth Parliament and were void and of no effect, and that the said notices and acts of Taylor and Martin were unlawful and illegal. The plaintiff alleged that by reason of those matters it had suffered and would suffer damage in the disruption of its organization and the due conduct thereof in due accord with its constitution and rules, which wei'e duly and j)ro])ei'ly binding on its members, and in the due and ])ro])er conduct of the election reipiired to be conducted under its constitution and rules, and by reason of the fact that, its oflices would be usurped by persons not lawfully elected under and in accordance with its constitution and rules and would incur expense and losses by reason of the said acts of Taylor a.nd Martin, and by reason of those tresj)asses.

The ])laijitiff claimed declarations ; (i) that s. 9(Jm and the regulations were invalid and ino])erative ; (ii) that the decision of Taylor, as set out in the notice dated 27th Se])tember 1951, was void and of no effect; and (iii) that the said notices were and each of them was void and of no effect; and an injunction restraining the defendants from continuing to do any of the acts complained of. Darcy Ahearn wars subsequently added as a defendant repre­ senting a class of persons consisting of himself and thirty-four

84 C.L.R.] OF AUSTRALIA.

267

other candidates on a certain “ ticket ” at the proposed election

H . C. OF A.

referred to in Taylor’s notice, and whose names were supplied to

1951.

the Court.

F e d e r a t e d

All the defendants demurred to the whole of the statement of

I r o n ­

w o r k e r s ’

claim.

A sso c ia tio n

OF

The relevant statutory provisions and regulations are sufficiently set forth in the judgment hereunder.

A ustra lia

V.

T h e

Comm on­

M. J . Ashkanasy K.C. (with him S. Isaacs K.C. and E. A.

w e a l t h .

Laurie), for the plaintiff. The question before the Court is whether s. 96m of the Conciliation and Arbitration Act 1904-1951 is valid or invalid. There is not sufficient nexus between s. 96m , and the regulations made thereunder, and pars, (xxxv.) and (xxxix.) of s. 51 of the Constitution. Alternatively, such a nexus can only be found by reading into s. 96m, by imphcation and construction, such powers as would make the decision of the registrar an exercise of judicial power. The introduction of control of the election of a branch of an organization is immediately an intrusion into the domestic affairs of the organization as a whole. The words “ with a view to ensuring ” in s. 96m (1) raise a question as to their scope and meaning and possible alternatives. A request made pursuant to s. 96m (1) must be with a view to ensuring that no irregularity occurs in or in connection with the election. I t is not left to the requestors merely to make a request although they may say they make it with a view to ensuring that no irregularity occurs. Such an expression of purpose, whether it is required to be expressed in writing or not, as part of the request or not, must be, in truth and fact, with a view to ensuring that no irregularity occurs in or in connection with the election. There must be some genuine belief that an election under s. 96m is necessary or expedient. There is not any method of reviewing the registrar’s decision, save that the Arbitration Court has the general power of granting special leave, if it thinks fit, to appeal from any decision of the registrar. If the action of the registrar is automatic, he acts although there may not be any nexus whatever, and, if he had to decide, he exercises important, vital, judicial powers, and what was laid down in Jacka v. Lewis (1) must of necessity apply. Section 96m permits very few members of an organization, and who may be completely unrepresentative, numerically, proportionately and otherwise, to make a request under the section. The power purported to have been conferred upon the registrar is analogous or equivalent to a justice of the peace committing a ministerial act.

(1) (1944) 68 C.L.R. 455.

268 HIGH COURT

[1951.

H.C. OF A.[McTiernan J. referred to R. v. Commonwealth Court of Con­

1951. ciliation and Arbitration; Ex parte Federated Clerks Union of

F eDEKATKI)

Australia, New South Wales Branch (1).]

Tr o n -

The main question is : Was there an application at all to the

WORKERS’

A s s o c ia t io nregistrar 1 The forms were entirely inconsistent with the Act.

OF

The constitutionality of s. 96n , the statutory provision there

A u s t r a l ia

before the Court, was not raised.

To endeavour to secure industrial

r.

'I'lIE

peace by taking control of the internal organization rules with

COjMMON-

W EALTH.respect to elections, without any contention of irregularity or

otherwise, is not within the conciliation and arbitration power ; it is beyond any real nexus or connection with the power. The stage has been reached at which the control of organizations is being taken over. There is ample power to insist (a) that the rules are adequate and satisfactory, as a condition of registration ; and (b) that if the rules become, for any reason, inadequate, the Court may, as a condition of registration, insist on an amendment of the rules. There is ample power, if the rules are not being complied with, to order compliance with the rules and to give directions for them to be carried out, including directions as to the conduct of elections. There has been superadded to that the power to annul any election which has been irregularly conducted and to order another election in its stead. There is, however, a wide gap between tho'se powers and s. 96m. Section 75 and sub-s. (6) of s. 83 of the Act both recognize that the association in each case has an existence and may have functions quite apart from those which are within the scope of the Federal legislature. An organization may have many activities outside the scope of the Act. I t wds recognized in Jumhunna Coal Mine, No Liability v. Victorian Coal Miners'' Association (2) that an organization which had a purely intra-State activity might yet be made the subject of the power of registration. Incorporation under the Act is only quo ad hoc, that is, the incorporation is effected only for the purposes of the Act [Australian Workers' Union v. Coles (3); Attorney- General for New South Wales v. Brewery Employes Union oj New South Wales (4) ). If an election is being conducted for the pur­ poses of the Act, the persons in control take control of a number of other activities, and they may be subjects over which the Federal Parliament has not any control whatsoever. The Federal Parliament may impose any conditions it desires as a condition of registration. Section 96m cannot be brought within that consti-

(]) (1950) 81 C.L.R. 229.(3) (1917) V.L.R. 332.

(2) (1908) 6 C.L.R. 309, at pp. 315,

(4) (1908) 6 C.L.R. 46.), at p. 587.

334, 336, 337, 340, 347.

84 C.L.R.] OF AUSTRALIA.

269

tutional theory. An organization registered under the Act has

H. C. OF A.

no way of becoming de-registered unless the Arbitration Court,

1951.

for reasons which seem good to it, de-registers the organization. F e d e r a t e d

I r o n ­ w o r k e r s ’

The Federal Parliament cannot, as it purports to do under s. 96m,

take general power over the control of trade unions. The Court

A ssocia tion

should be very alert to ensure that the cribbing by Parhament

OF

A ustralia

of more and more power is not allowed. When the prescribed

V.

conditions are fulfilled, the Arbitration Court is given power to

T he

CO.MMON-

order compliance with the rules when the Court is satisfied that it

WEALTH.

is necessary or desirable to do so {R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Barrett (1) ). Section 58e under consideration in that case is s. 81 in the Act as now in force. The two extremes of concessions made by the plaintiff as to the possible powers of dealing with a particular matter dealt with in s. 96m are ; (i) that in effect what is in s. 81 might be extended so that where it is proved that a breach of the rules is threatened and likely, including rules relating to elections, and such breach would affect conciliation and arbitration as set out in s. 51 (xxxv.) and (xxxix.) of the Constitution, the Court might give directions under s. 81 to prevent such breach ; including in the term “ breach of the rules ” something which may be literal compliance with their verbiage but inconsistent with the rules in the sense that they may involve fraud or dishonesty : see McWilliam and Boyt’s Commonwealth Conciliation and Arbitration Law {Aust.) (1946-1948), vol. 1, page 154 ; and (ii) that a real criticism of what appears in s. 96m might be required as a condition of registration or a continu­ ance of registration, but, following the reasoning in the Jumbunna Case (2) and subsequent cases, that would be valid only because the legislature is entitled to attach whatever conditions it may require within or without power in themselves as a condition of the granting of a privilege. The broad basis of the argument goes back funda­ mentally to the argument that s. 96m has no real relation with the powers set out in pars, (xxxv.) and (xxxix.). Section 96m consti­ tutes an interference with the contractual and proprietary rights, including rights relating to the holding of offices of profit, and such an interference with contractual and proprietary rights, subjects generally outside the whole of the powers, is one that itself requires some sufficiently clear demonstration of a weight of power to justify it. There is nothing in s. 96m comparable with other powers under ss. 96a to 96n ; sections which base the inter­ vention of the Court upon irregularities in the conduct of elections.

(1) (1945) 70 C.L.R. 141, at pp. 163,

(2) (1908) 6 C.L.R. 309.

270 HIGH COURT

[1951.

H.

(’. OF A.A request under s. 96m may be based on conditions unassociated

1951. with tJm conciliation and arbitration power, or even with any

F e d e r a t e dfear that the election may not be properly conducted. The

Ir o n ­

w o r k e r s ’validity of s. 96n was not called in question in R. v. Commonwealth

AssociationCourt of Conciliation and Arbitration ; Ex parte Grant (1), there­

OF

fore it would be futile to rely upon that case as in any way bearing

A dstraria

V.on the validity of ss. 96a to 96m inclusive, and much less on the

'Phevalidity of s. 96n . Nor was validity in question in R. v. Common­

Comm on­

w e a l t h .wealth Court of Conciliation and Arbitration ; Ex parte Federated Clerks Union of Australia, New South Wales Branch (2). The mere fact of the registration of an association, and the fact that it is then given a common seal with perpetual succession and certain characteristics of incorporation for the purposes of the Act, does not make them creatures or creations of the Federal Parliament so that they become completely under the control of Parliament for all purposes. The power is expressed to be only for the purposes of the Act. The sole function of a cancellation of registration under the Act is to deprive an organization of the particular privileges which, as a matter of legislation, have been granted to it, leaving the association which had an existence apart from the registration intact, as the price of the advantages of registration. The cancellation of registration is not a judicial function; it is simply the taking away of the privilege of registra­ tion without otherwise affecting the rights and remedies of the organization within itself {Australian Commonwealth Shipping Board v. Federated, Seamen’s Union of Australasia (3); Consolidated Press Ltd. v. Australian Journalists’ Association (1) ). Jacka

V.  Lewis (5) was a case of judicial power.

[D ix o n J. referred to R. v. Taylor ; Ex parte Professional Officers’’

Association—Commonwealth Public Service (6).]

Either the registrar acts, as it were automatically, upon a request being signed, in which there is not any link wdth the conciliation and arbitration power ; or he has to determine various facts, includ­ ing whether there is any relation to that power, in w'hich event it would be an exercise of judicial power. The substance of s. 96m goes far beyond anything which has previously appeared in the Act. I t opens up an entirely new field, that of the control of the internal affairs of unions. In its terms s. 96m authorizes the overriding, not the enforcement, of the rules—the direct opposite of s. 81—and tends to disturb industrial peace. Section 96m, in

(1) {I960) 81 C.L.R. 27.(4) (1947) 73 C.L.R. 549.

(2) (I960) 81 C.L.R. 229.(5) (1944) 68 C.L.R. 455.

(3) (1926) 36 C.L.R. 442.

(6) (1951) 82 C.L.R. 177.

84 C.L.R.] • OF AUSTRALIA.

271

effect, empowers the industrial registrar to direct that all trade

H. C . OF A.

union elections shall be conducted by electoral officers. The

1951.

question is the very fundamental one of whether trade unions

F e d e r a t e d

as a whole can be brought under the general control of the Federal

I r o n ­

w o r k e r s ’

Parhament.

A ssocia tion

[D ix o n J . referred to the Jumbunna Case (1) ;

OF

Metal Trades

A ustralia

Employers Association v. Amalgamated Engineering Union (2) and

V.

Burwood Cinema Ltd. v. Australian Theatrical and Amusement

T h e

Comm on­

Employees' Association (3).] ■

w e a l t h .

In principle there cannot be drawn any distinction between sub-ss. (1) and (2) of s. 96m as they stand and the simple power of the legislature to order in all cases tha t elections shall be conducted by Commonwealth officers. The imposition of irksome conditions would be inconsistent with the autonomy to which the corporation is entitled. Such conditions should not be imposed. There is not any nexus between s. 96m in its present form and any power in the Constitution, including pars, (xxxv.) and (xxxix.) of s. 51. Alternatively, if a nexus were to be found, it would be by reading such implications into the exercise of the registrar’s power as to include his decision in relation to industrial power, to make his decision a judicial decision. For that reason s. 96m, or, alterna­ tively, the inclusion thereunder of sub-s. (2) (6), should be held to be invalid ; or, alternatively, the rule that provides that certain small numbers and percentages can operate, should be declared to be invalid.

P. D. Phillips K.C. (with him R. L. Gilbert), for the defendants, the Commonwealth, Taylor and Martin. The powers of the Federal Parliament are not, and should not be, limited by the sovereignty of trade unions. If the power is there it does not matter whether it affects the sovereignty of trade unions ; and if the power is not there it is irrelevant. If the power is well-based, the fact that it interferes with the sovereignty of trade unions is quite irrelevant. A power to regulate, in its widest sense—control, select, condition—the agency, that is, the spokesman, for organiza­ tions of employers or employees in the arbitration system, is directly incidental to conciliation and arbitration. Whether that involves intrusion on autonomy or not is a policy question which may be left to the Parliament. The Jumbunna Case (1) is only an illustration of the incidental power necessary to implement a system of compulsory arbitration. If a dispute extending beyond

(1) (1908) 6 C.L.R. .309.(3) (1925) 35 C.L.R. 528.

(2) (193.5) 54 C.L.R. 387.

272 HIGH COURT

[1951.

H.

C. OF A.the limits of any one State did in fact arise, the power of the

1951. Commonwealth Parliament deals with that dispute whether the

F e d e r a t e dparties elect to come within the scope of arbitration control or

I r o n ­

not. Parliament could compel them to attend before an arbi­

w o r k e r s ’

Associa tiontrator and have their dispute arbitrated, notwithstanding that

OF

they were insistent that they were not registered, would not come

A ustra lia

V.to the Court and would not have anything to do with it. The

T h eFederal Parliament may impose arbitration upon the disputants

Com m on­

notwithstanding that, they have held aloof.

The legislative regula­

w e a l t h .

tion, including selection, nomination and the hke, of the agents of the entities which are or form part of potential parties to industrial disputes is just as much a matter incidental as the creation of the corporation. “ As incidental to arbitration ” , just as the incorpora­ tion of employees can be provided for, so, too, can there be provided, within limits, provisions for the regulation of the agents who speak for them. They are corporations. They can act only through agents, and there is a power to make laws for regulating those agents. I t is within power for the Parliament to provide that every trade union election must be scrutinized by an officer of the State, or a representative of the community. The test in each case is : Is the law incidental to the system of industrial arbitration as we understand it ? Section 96m simply provides that it will take the trade unions existing, allow them to elect spokesmen, and if there is a demand for the supervision of the election by an independent person it will create a statutory system for that purpose. I t is within the arbitration power to compel the continuance of an organization which seeks registration not­ withstanding its own desire to go outside, because the interests of other parties are involved once it comes into the system and obtains awards. Therefore there is legitimate constitutional justification for continuance of registration despite the wish of the organization to withdraw. That is within par. (xxxv.) of s. 51. Discretion should be used to bring the power within constitutional limits. Notwithstanding that there is not any provision for volun­ tary withdrawal, the Act is valid. Nothing turns on the fact that conditions are imposed upon organizations previously regis­ tered, or are imposed upon organizations which cannot voluntarily withdraw. Conditioning the spokesmen or agents or body of men ; making laws relating to the spokesmen, the bodies which are parties to inter-State industrial disputes which may be made the subject of arbitration compulsorily, is directly within the power. The link with power is that it is concerned with the individuals who will act for the body of men. The very process of arbitration

84 C.L.R.] OF AUSTRALIA.

273

pre-supposes spokesmen. Some of the agents of the corporation

H. C. OF A.

will be the necessary spokesmen without whom an arbitration

19.51.

system cannot be carried on. The necessity of organizing large F e d e r a t e d

I r o n ­ w o r k e r s ’

bodies of individual persons in order to deal with the fact of

industrial disputes makes the provision within power. The fact

A s.sociatio n

that the particular exercise of the power involves partial inter­

OF

A ustra lia

ference with the rules of the organization is irrelevant. The

V.

T h e Comm on­

constitutional basis of s. 96m has no necessary connection with the

desires of the members of the organization, nor is it defeated because

w e a l t h .

of the tenuousness of the relations between the exercise of the power by the industrial registrar and the desires of the organization. That is merely a matter of legislative pohcy. I t does not go to validity. Similarly, its validity does not depend upon whether, in fact, there have been irregularities, or whether there is reasonable ground for anticipating irregularities. That has nothing to do with the genuine source of power. The Federal Parliament has, by reason of the incidental power, a power to make laws with respect to agents of those bodies of men who are involved in inter-State disputes. There is an analogous position in other parts of the world : see American Communications Association V. Douds (1) and Hill v. Florida (2). I t is within power to ensure tha t the agents of organizations represent a genuine free selection of the individuals who constitute that organization, and it is a m atter for the Parliament to determine what appropriate steps should be taken to ensure free representation. A law which is a law with respect to the bona-fide selection of genuine representatives of a group is a law within the incidental power. The statutory provisions under consideration constitute such a law. That being so, it is not for the Court to determine what kind of legislative supervision should be made for guaranteeing that genuine represen­ tation. The power would extend to Parliament authorizing that a request under s. 96m (1) could be made by any number that Parliament thought fit. I t is not brought within the rules because it happens to interfere with the rules, and it is not taken outside the power because it happens to interfere with autonomy. The corporations of persons within the arbitration system are subject to the power of Parliament and that power extends to the election of officers of those corporations. Whether as spokesmen in the Arbitration Court or acting outside that Court in carrying out the affairs of the organization, they all come within the scope. Section 96m never gets wider than activities involved in the conduct

(1) (1950) 339 U.S. 382 [94 Law. Ed.

(2) (1945) 325 U.S. 538 [89 Law. Ed.

925].

*782].

V O L.

L X X X IV .-

274 HIGH COURT

[1951.

H. {. OT A. elections and ancillary matters necessary to protect those activities. The real solution is to look at the nature of s. 96m and Kedhhatei) ii-«̂ '<̂i’tain whether it is incidental. The extent of the power to

I r o n - interfere with the internal regulation and government of those

Asso'('iatk)n (>i'f?Auhzations cannot be tested merely by saying how far is this OFinterference or that interference related to arbitration. The only

Ao str a u a

0 .

way the validity of an interference can be tested is by considering

Thkthe whole system which the statute has set up, and then ascertain­

(!om mon-

WEALTH.ing whether the particular regulation, say, of the internal affairs

of those organizations in the light of the system, can be justified as ancillary to arbitration. The problem of determining the extent of the internal control, if and when that arises, involves an inquiry of a kind quite different from the inquiry which is neces­ sary for the determination of the validity of s. 96m. The whole nature of the statutory scheme must be taken, and the tactical significance of s. 82 cannot be ignored. That section, the validity of which is beyond doubt, alters the tactical significance. I t is submitted that s. 96m is valid and that wfithout any consideration of the number who may request an election, or without any consideration of whether sub-s. (2) should be read as limiting the power of the Executive to prescribe a substantial minority, so that a prescription which ŵ as not of a substantial minority would not be within the implicit power granted. The narrow’est form which justifies s. 96m is the law dealing with the regulating of the conduct of elections for officers, the election of whom is required by statute; Schedule B (1) (a). I t is a laŵ wfith respect to the conduct of elections for office ; elections which are required by statute.

E. S. Aliller K.C. (with him J . R. Kerr and //. H. Glass), for the defendant Ahearn. The system of incorporation of organizations contained in the Act whereby all employers or employees may facilitate the working out of the conciliation and arbitration powers in the Constitution, is clearly a scheme within powder. That being so, it is necessary that there should be some means whereby persons, members of those organizations, should be represented for the purpose of the statute. Section 96m is not in essence, from the point of view of constitutional validity, in any different ]Josition from the other sections contained in Part VI. of the Act. An organization registered under the Act may become unregistered. Section 96m is within constitutional power in that it is calculated to serve the interests of industrial peace by ensuring that control

84 C.L.R.] OF AUSTRALIA.

275

of an organization, or its branch, shall be in the hands of officials

H. C. OF A.

properly and duly elected, and elected in such a manner as to

1951.

secure the confidence of its members. That section merely replaces,

F ed e r a t e d

for the purposes of an election prescribed by the rules of the organiza­

I r o n ­

w o r k e r s ’

tion, the returning officer appointed under the rules and substitutes

A ssocia tion

the Commonwealth Electoral Officer. I t does not take control

OF

A ustralia

over the organization. I t merely vests supervision of the election

V.

in a public official experienced in such work and whose impartiality

'tHE

Comm on­

has never been questioned. The section is a provision for safe­

w e a l t h .

guarding the democratic processes in the organization. I t is merely intended to secure that each member, and no one other than a member, shall exercise a vote, and that each vote recorded shall be duly counted. The limits within which the person shall conduct the election under s. 96m are clearly indicated as being for the purpose of securing that no irregularities occur in the election, or to remedy any procedural defects. That is exactly the function and the power of the returning officer appointed by the plaintiff organization. The conduct of the election means the doing of all things necessary in order to ascertain the wishes of the members as to who are the officials they wish to control the affairs of their organization or branch, and all matters incidental thereto. There is nothing in the section which seeks to foist upon the mem­ bers officers whom the members do not want, or seeks to impose upon them burdens or obligations with respect to those officers other than such officers who meet with their approval as shown by the ballot to be taken. I t is purely a matter of policy for the legislature as to the manner chosen to enable the particular election to be held. A test as to whether a particular piece of legislation is within the incidental power is shown in the Jumbunna Case (1). Confidence of members in their elected representatives should not be shaken by doubts as to the genuineness of their election. Such doubts are prejudicial to industrial peace. The internal affairs of an organization under its rules should not be regarded as a separate area. Of necessity on numerous occasions the exercise of the incidental power will invade the internal affairs of an organization, but they should not be regarded as an interference. Each of the defendant Martin’s directions complained of by the plaintiff is a direction authorized by s. 96m (6) and they are all designed to ensure that irregularities shall not occur. None of those directions is inconsistent with the plaintiff’s rules. There is not any proper justification for the contention that s. 96m is invalid.

(]) (1908) 6 C.L.R., at pp. 348, .3.59.

.270 HIGH COURT

[1951.

R. C. OF A.

M. J. Ashkanasy K.C., in reply. This action is brought primarily to establish the principle generally of whether an industrial union is to be allowed to conduct its own election, or whether such a

F

ed er a te I)

I r o n ­matter can be taken out of the control of the union.

The Federal

w ork F.Ks’

A ssocia tionParliament cannot invade private rights unless it be shown that it

OF

has power to do so {Attorney-General for the Commonwealth of

A ustraiaa

r.

Australia v. Colonial Sugar Refining Co. Ltd. (1)). Consideration

Î'HEmust be given to the particular exercise of legislative power in

Com m on­

order to determine whether it comes within that power.

A general

w e a l t h .

control over industrial organizations was negatived in fact in the Jumhunna Case (2). There are not any remedies for any irregu­ larities occurring when an election is conducted outside the organiza­ tion concerned. Nor is there any real relation between the exercise of the power and any actual irregularity. There is not any method by which industrial peace, in the sense in which it is used in par. (xxxv.), would be furthered merely by the fact that an election is being conducted by an outside person.

Cur. adv. vult.

X'ov. 19.

The Court delivered the following written judgm ent:—

The question upon these two demurrers is whether s. 96m of the

Conciliation and Arbitration Act 1904-1951 is invalid. Section 96m

as it now stands was enacted by the Conciliation and Arbitration

Act (No. 2) 1951, which repealed the former s. 96m, a provision

that had been introduced by the Commonwealth Conciliation and

Arbitration Act 1949. The general purpose of the section is to

arm the Industrial Registrar with authority to undertake the

conduct of an election of office-bearers of an organization registered

under the Act or of a branch of such an organization. The authority

is subject to certain conditions precedent. But when it arises

the registrar may conduct the election himself or direct some other

officer of his Registry to do so or arrange with the Chief Electoral

Officer for it to be done by one of his officers. The attack upon

the validity of the provision is made upon the ground that it is

outside the power conferred upon the Commonwealth Parhament

by s. 51 (xxxv.) of the Constitution to legislate with respect to

conciliation and arbitration for the prevention and settlement of

industrial disputes extending beyond the limits of any one State

and the power conferred by s. 51 (xxxix.) to make laws with respect

to matters incidental to the execution of any power vested by the

Constitution in the Parliament and that there is no other power

(1) (1914)A.C. 237; (1913) 17C.L.K.

(2) (1908) 6 C.L.R. 309.

84 C.L.R.] OF AUSTRALIA.

277

to which it may be referred. Everything which is incidental to

H. C. or A.

the main purpose of a legislative power is contained in the grant

1951.

of the power itself. Thus the power to make laws with respect

F e d e r a t e d

to conciliation and arbitration for the prevention and settlement of

Iroî -

WORKERS’

two-state industrial disputes carries with it authority to make

A s.sociatiost

such provisions as are incidental to the effectuation of the purpose

OF

A ustra lia

described by the express words of the power.

V.

3'HE

Under this doctrine the Court upheld long ago the provisions con­ tained in Part V. of the Act of 1904 for the registration of organiza­

Com m on­

w e a l t h .

tions of employers and employees: Jumhunna Coal Mine v.

Di.Aon J.

Victorian Coal Miners' Association (1). Because the legislative

McTiernan .T. Williams .1.

power related to disputes to which large and changing bodies of Webb J.

FuUagar J.

men were or might be parties and appointed arbitration as the

Kitto J.

means of setthng such disputes it was considered to be incidental to the main purpose of the power to provide for the registration of associations of employers and of employees and for the incorpora­ tion of the bodies so registered. By that means the double purpose was thought to be served of enabling the representation of potential disputants before the Court and of providing a method of working out the scope and operation of awards. But the power to regulate and control organizations was not treated as limited to these pur­ poses. The pecuhar nature of the legislative power and of its subject m atter involved a good deal more.

The judgment of O'Connor J. expresses with great clearness the principles upon which the Court proceeded in bringing the regulation of industrial organization within the operation of s. 51 (xxxv.) as a matter incidental to the exercise of tha t legislative power. As these principles govern the decision of the present case it is desirable to set out a passage from his Honour’s judgment in which they are stated, extensive though the passage is. After formulating the well-known test of the validity of the legislative- exercise of an incidental power which depends upon the end aimed at being within power and the means chosen being appropriate, the learned judge said :—“ The end aimed at by the Act in question here is the prevention and settlement of industrial disputes extending beyond any one State by conciliation and arbitration. I t may well be conceded that there is no general power to prevent and settle industrial disputes by any means the legislature may think fit to adopt. The power is restricted to ])revention and settlement by concihation and arbitration. Any attem pt to effectively prevent and settle industrial disputes by either of these means would be idle if individual workmen and

(1) (1908) 6 C.L.R. 309.

278 HIGH COURT

[1951.

H. ('. OF A.

employes only could be dealt with. The application of the ‘ principle

lyf)!.

of collective bargaining not long in use at the time of the passing

.KiCniiHA'I'EI)

of the Constitution, is essential to bind the body of workers in a

I r o n -

WORKHRS’trade and to ensure anything like permanence in the settlement.

A s s o c ia t io nSome system was therefore essential by which the powers of the

OF

Act could be made to operate on representatives of workmen, and

A ivstkai. ia

on bodies of workmen, instead of on individuals only.

But if such

V.

T he

representatives were merely chosen for the occasion without any

C o m m o n ­

w e a l t h .permanent status before the Court, it is difficult to see how the

;i)ixon J. permanency of any settlement of a dispute could be assured.

McTicnian J. Even when the dispute is at the stage when it may be prevented

Williams J.

Webb J.

or settled by conciliation, the representative body must have

I'Tillagar J.

Kitto J,the right to bind and the power to persuade not only the individuals

with whom the dispute has arisen, but the ever changing body of

workmen that constitute the trade.

I t has been contended that it was unnecessary for this purpose that the Court should do more than give to the trade unions and other associations constituted under the State laws a locus standi before the Commonwealth (Court). But such a course would very much limit the effective exercise of the power. All employes likely to seek the aid of the Court are not in State unions or associa­ tions. Besides, it may be fairly said that it is essential to the proper control of the organization by the Court that their rules and constitutions should be under the control of the Court, and that the constitution of all organizations having a status in the Court should, in certain respects at least, be uniform. Every effective agreement for the settlement of disputes brought about by conciliation and by compromise must regulate the working rela­ tions of the parties for a definite period. Similarly, an award must be for a definite period. In either case it is essential that the representative body should be strong enough to secure obedience by individual workers of the conditions of the agreement or award, and, in the case of an award, it is essential not only that the Court should have the representative body before it in the hearing of the dispute, but that it should be able to make that body responsible for the observance of that award by those whom it represents.

Again, if the award is to have any value, the Court must be able to enforce obedience on the representative bodies. That can only be accomphshed by the infliction of penalties. But the award of penalties is a mere form unless there are funds available for the payment of penalties, and property which may be levied on if penalties remain unpaid. Without any further examination of the requirements essential in the rejwesentative body which is

84 C.L.R.] OF AUSTRALIA.

279

to stand for the workmen in the industrial dispute, I have said

H. C. OF A.

enough, I think, to lead fairly to the inference that, if the judicial

1951.

power of the Commonwealth is to be effectively exercised by way

F ed e r a t e d

of conciliation and arbitration in the settlement of industrial

I r o n -

WORKER.S’

disputes, it must be by bringing it to bear on representative bodies

A.ssocia tion

standing for groups of workmen. Further, that the representative

OF

A ustralia

body must have some permanent existence, irrespective of the

V.

change in personnel of its members from time to time which is

T he

Com m on­

always going on. That it must have a power to control by enforce­

w e a l t h .

ment of its rules, and so to influence its members individually

Dixon, J.

to perform the conditions of agreements and awards made in McTiernan J.

Williams J.

settlement of industrial disputes. That it must be endowed with Webb .1.

FuUagar I.

the legal capacity for holding moneys for purposes of its business Kitto

J.

and of investment.

It is obvious that a representative body of the kind I have indicated could be constituted only by the creation of some legal entity, whether it be of the nature of trade union, friendly society, or corporate body with limited powers. I t being once established, as I think it has been, that it is essential for effective exercise of the power conferred by the Constitution that provision should be made for the creation of some such legal entity invested with the necessary incidents and rights, it is for the Parliament, not for this Court, to determine the particular form in which the legal existence should be conferred ” (1).

In Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees’ Association (2) the majority of the Court recognized that organizations registered under the Act had a place not only in the settlement of industrial disputes but also as the instruments for propounding claims from which industrial disputes may arise. Isaacs J . (3) regarded it as an essential condition of the exercise of the power that associations of employees, and no doubt of em­ ployers, should be constituted to represent the class of employees or employers, as the case might be, in the particular industry concerned. Starke J. (4) based his judgment upon the view that an industrial dispute arises from an industrial relationship and concerns industrial conditions affecting the class engaged in the industry and not merely affecting individual and dehnite members of the class. Because associations of large bodies of men are defective in legal personality it was expedient, at least for the purposes of legal representation and probably also for the purposes of collective bargaining, that they should be organized in some

(1) (1908) 6 C.L.R., at pp. 358-360.(3) (1925) 35 C.L.R., at pp. 540-542.

(2) (1925) .35 C.L.R. 528.

(4) (1925) 35 C.L.R., at pp. 548-551.

280 HIGH COURT

[1951.

H.

(\ OF A.form. His Honour adopted the view that an organization regis­

1951.tered under the Arbitration Act is not a mere agent of its members,

Kiodkkatei)but it stands in their place and acts on their account and is

1 KON-

representative of the class associated together in the organization.

WORKKRS’

As .sociationThus it can make demands on their behalf, the acts and conduct

OF

of its members being relevant upon the question whether a dispute

A ustralia

r.

submitted to the court by an organization is real or illusory, but

Theotherwise being immaterial. See, further, Metal Trade's Employers' CO.MMON-

w e a l t ii.Association v. Amalgam,ated Engineering Union (1). This may have involved an extension of the principles adopted by the Court

Dixon J.

McTiernan J. in Jumhunna Coal Mine v. Victorian Coal Miners’ Association (2),

Williams J,

Webb J. but it is now an accepted constitutional principle that associations

FuUagar J.

Kitto J.of employees may, in the exercise of the power conferred by

s. 51 (xxxv.), be established, registered and incorporated so that in the formulation of demands and the settlement of industrial disputes classes of men in an industry or a group of industries may be represented.

In effect the question which we are called upon to decide in the present case is whether the incidental power also includes legislative authority to take measures directed to ensuring that the officers of an organization so registered and incorporated shall be elected in a manner calculated to ascertain the authentic will of the members. A more detailed examination of s. 96m will show that in substance that is the purpose of the provision. Sub-sections (1) to (4) express the conditions precedent to the exercise of the power conferred upon the Industrial Registrar. Sub-section (1) enables an organization or a branch of an organization to make a written request to the Industrial Registrar that an election for an office in the organization or in the branch (as the case may be) should be conducted under the section with a view to ensuring that no irregularity occurs in or in connection with the election. The word “ office ” has a wide meaning. By s. 4 of the Conciliation and Arbitration Act 1904-1951, it is defined to include the office of a member of the committee of management, the office of a person holding, whether as trustee or otherwise, the property of the organization or branch, and every office within the organization or branch for the filfing of which an election is conducted within the organization or branch. The word “ irregularity ” also has a defined meaning. By s. 4 it is defined in relation to an election for an office to include a breach of the rules of an organization or a branch of the organization and any act, omission or other means whereby the full and free recording of votes by all persons entitled

(1) (1935) 54 C.L.R. 387.

(2) (1908) 6 C.L.R. 309.

84 C.L.R.] OF AUSTRALIA.

281

to record votes and by no other persons or a correct ascertainment

H. C. OF A.

of the results of the voting is, or is attempted to be, prevented

1951.

or hindered. Sub-section (2) of s. 96m gives a secondary meaning F

ed e r a t e d

or application to the words “ organization or branch of an organiza*

I r o n -

WORKBRS’

tion ” in siib-s. (1). I t provides that for the purposes of sub-s. (1)

A ssocia tion

a request by an organization or branch may be made by or on

OF

A ustralia

behalf of the committee of management of the organization or of

V.

the branch, as the case may be, or by a number, ascertained as

T h e

Comm on­

prescribed, of the members of the organization or of the branch,

w e a l t h .

as the case may be. In fact by regulations a number has been

Dixon J.

prescribed in the case of the request of a branch of one thousand

McTiernan ,T. Williams J.

or one-tenth of the total number of the members of the organization,

Webb J. FuUagar J.

whichever is the less, and in the case of a request by a branch

Kitto J.

five hundred or one-fifth of the total number of the members of the branch, whichever is the less (see reg. 133b of the Conciliation and Arbitration Regulations inserted by S.R. 1951, No. 100).

I t was pointed out on behalf of the plaintiff upon the argument of the demurrers that, so far as sub-s. (2) went, it would be possible' to prescribe some very small number which in no sense could be regarded as representing the apprehensions of any substantial body of members. That is not what sub-s. (2) contemplates, but if this possibility be open upon the words of sub-s. (2) it is not a matter which goes to power ; for if the power exists it depends upon the regulation of the election of officers being a matter incidental to the constitutional power. I t cannot depend on the character of the conditions which are laid down as pre-requisites of the intervention of the Industrial Registrar or some other authority to supervise the voting.

Sub-section (3), which relates to prescribing times within which requests may be made, is not important constitutionally. Sub­ section (4) provides that where a request is made or purports to be made under the section, the Industrial Registrar shall, after making such inquiries, if any, as he considers necessary, decide whether or not the request has been duly made. The meaning is that he must ascertain whether the request has been made by the organization or branch or by or on behalf of the committee of management of the organization or branch or by the requisite number of members and in due time. The Industrial Registrar’s duties under s. 4 are administrative and involve no exercise of the judicial power of the Commonwealth. If he decides that the request has been duly made he may then proceed to exercise the power conferred by sub-s. (5). That sub-section provides that where the Industrial Registrar decides that a request has been.

282 HIGH COURT

[1951.

H , OF A.

duly made under that section he sliall inform the organization

1951.or branch accordingly and may conduct the election, direct a

F f d e k a t u dDejnity Industrial Registrar or other employee in the Registry

I k o n -

to conduct the election or make arrangements with the Chief

WOHKEHS’

AssociationIGectoral Oflicer for the Commonwealth for the conduct of the

OT’

election by a Commonwealth l^lectoral Officer or Returning

A i ' stkalia

r.

Officer hokling office under the Commonwealth Electoral Act 1918­

T im1949. Sub-section (6) tlien provides that, notwithstanding any­

COJIM OK­

AY EALTH.thing contained in the rules of the organization, the person conduct­

Dixon J. ing tlie election may take such action and gi\’e such directions as he McTinruau J .

considers necessary in order to ensure that no irregularities occur

Williiinis J.

Webb J. in or in connection with the election or to remedy any procedural

FuUagar J.

Kitto J.defects in those rules Avhich appear to him to exist. The remaining sub-sections of s. 96m do not appear to affect the question of validity with which this case is concerned. Even if it were possible to discover any independent ground for attacking their validity it is hard to suppose that the validity of sub-ss. (5) and (6) would be affected. In addition, the facts alleged in the statement of claim hardly give the plaintiff a locus standi to make any independent attack upon their validity. But as some reliance was placed upon them on behalf of the plaintiff during the argument it is ]>erhaps as well to mention them. Sub-section (7) penalizes disobedience to the directions given under sub-s. (6) for any obstruction or hindrance. Sub-section (8) excludes the provision of the division of the Act relating to inquiries into elections if the election has been conducted under s. 96m. Sub-section (9) provides that an election conducted under the section is not to be invalid by reason of any irregularity in the request or by reason of a breach of the rules. Sub-section (10) throws on the organization or branch con­ cerned the expenses of an election conducted under this section, excepting the salary of any officer of the Commonwealth perform­ ing any duty in relation to the election. Sub-section (11) is an evidentiary section affecting only the identification of the members of the organization.

What is ultimately in question is the validity of sub-ss. (5) and

( 6) .

We think it follows from the principles to Avhich we have already referred that the organizations registered and incorporated under the Conciliation and Arbitration Act may be regulated under the incidental poAver with a view to ensuring that the election of officers is duly carried out. The Federal power to provide for the formation, registration and incorporation of such organizations

84 C.L.R.] OF AUSTRALIA.

283

depends upon the necessity or the desirability of large classes of

H. C. OF A.

men being represented. Representation involves much more

1951.

than the establishment of a corporation, that is to say, of a legal

F ed jjra ted

person capable of being made a party to legal proceedings and of

I r o n ­

w o r k e r s ’ Associa tion

being the object of legal rights and duties.

I t involves the repre­

sentation of the men by a committee of management or other

OF

A ustra lia

officers who control the actions of the corporate body. The

V.

authentic expression of the will of the members in appointing

T he

Comm on­

officers must be incidental to the subject matter of the constitutional

w e a l t h .

power.

I t arises directly out of the considerations which afforded

ni.Aoii J.

the constitutional justification for the provisions which are now

McTienmii .T. Williams .1.

Divs. 1 and 2 of Part VI. of the Conciliation and Arbitration Act

Webb .1. FuIUigar J.

1904-1951 and Schedule B (see particularly Schedule B (1) (a) ). •

Kitto J.

I t was suggested that registered organizations do, or may, have a double aspect and that behind the corporate body established under these divisions lies an association, voluntarily formed, of persons for purposes not necessarily connected in any way with industrial disputes or arbitration and concihation and that the officers and committee of management are equally concerned with the aspect of the association which is not the subject of the Federal power. This may be so, but it cannot affect the legislative power of the Commonwealth Parliament to deal with the organization in the aspect which brings it under Federal power, and as the officers and committee of management are appointed to conduct the affairs of the body, it must follow that their proper election or appointment can be regulated by Federal law. The point was taken that under sub-s. (6) it is possible for the officer conducting the election to ignore, a t all events to some extent, the provisions of the rules of the organization or branch. Sub-section (6) does not authorize him to ignore the substantive rules which govern the constitution of the offices and the requirement that the occu­ pants should be elected. I t is carefully guarded and doubtless only authorizes departures from particular rules for the avoidance of irregularities in the defined sense and for remedying what it describes as procedural defects. That is to say, the sub-section is directed to overcoming subsidiary impediments to the proper execution of the main provisions of the rules, sanctioned under ss. 70 and 71, which govern the election of office-bearers. Such a provision is fairly within the incidental power.

For these reasons we are of opinion that the attack on the validity of sub-ss. (1) to (6) of s. 96m fails. We do not cast any doidff upon the validity of the remaining sub-sections of s. 96m

284 HIGH COURT

[1951

H.('. OF A. but their validity does not strictly arise for decision. For these

1951. reasons the demurrers to the statement of claim should be allowed, and with costs.

F

u d k r a tu d

I k o n -

W O R K K I I S ’

Demurrers alloujed with costs. The order must

A.SS(>('I,.VTK)N

he drawn up to show that upon the hearing

OK

A k s t k .vma

of the demurrers a direction was given

r.

that the added defendant Ahearn should

'PllK

( , 'O.MMON-

defend on behalf of himself and all others

of a class of persons whose names were supplied, and their names must be set out in a schedule to the order.

W K A L T H .

Solicitor for the plaintiff, J. M. Lazarus, Melbourne, by C. Jollie

Smith & Co.

Solicitor for the defendants, the Commonwealth, Taylor and Martin, D. D. Bell, Crown Sohcitor for the Commonwealth.

Solicitors for the defendant Ahearn, Boyland, McClelland & Co.

J. B.