Owens & Ors v Commonwealth of Australia

[1991] HCATrans 133

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml5 of 1991

B e t w e e n -

RONALD GEORGE OWENS, KEVIN

NOEL REYNOLDS, and NORMAN

LESLIE GALLAGHER

Plaintiffs

and

COMMONWEALTH OF AUSTRALIA

Defendant

Demurrer

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Owens 1 5/6/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 JUNE 1991, AT 10.19 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR S.J. GAGELER, for the

plaintiffs. (instructed by Arnold Bloch Leibler)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned

friend, MS s.c. KENNY, for the defendant.

(instructed by the Australian Government Solicitor)

MR R.A. BRETT: If it please the Court, I appear with my

learned leader, MR H.C. BERKELEY, OC,
Solicitor-General for Victoria, on behalf of the

Attorney-General for Victoria, intervening on

behalf of the defendant.	(instructed by the Crown
Solicitor for Victoria)

MASON CJ: Yes, Mr Bennett?

MR BENNETT:  I hand up an outline of submissions and a copy

of a second reading speech to which I will be

referring.

MASON CJ:	Yes Mr Bennett.
MR BENNETT:	If the Court pleases. Your Honours, there are

two issues in this case; the first is the limits of

a purpose of power and the second is the extent to

which one can assume the necessary constitutional

facts. One starts with a proposition that placitum

(xxxv) confers a purpose of power and it is clear

that legislation concerning the registration and

deregistration of industrial organizations is

incidental to that power, and to take the familiar

passage from Jumbunna Mines, for such legislation

to be valid, it must be capable of being seen to be

appropriate and adapted to the object of that

power.

Now, what this legislation does is something

which stretches the limits of that. There has been

legislation, the validity of which has been upheld,

which is said, because of the activities of the

federation, while within the system, it should be

deregistered for five years and at the end of five years, it should only be permitted back within the

system on it proving to the satisfaction of an

appropriate body, the Commission, certain matters,

and those are set out in section S(l)(b) of the

Consequential Provisions Act. That has a long

name; it is the Builders Labourers' Federation

(Cancellation of Registration-Consequential

Provisions) Act 1986.

Your Honours will see that paragraph S(l)(b)

precludes reregistration after five years unless the Commission has declared that it is satisfied

that: first, if it were registered it would not

Owens 5/6/91

engage in conduct inimical; that its

registration -

would not prevent or seriously hinder the

achievement of an object of the Conciliation

and Arbitration Act;

the requirements of the Act would apply in relation

to it, and so the other requirements are there.

What was imposed as a consequence of acts done

within the system was a five year suspension and an
additional barrier to re-entry at the end of five
years of satisfying the Commission of certain
matters.

What has been done now is to amend that five

years to ten years, and that has been done on the
basis of events which have occurred since

deregistration. Might I take Your Honours to the

second reading speech which I have just handed up.

Your Honours will see that at the beginning of that

speech it is stated that the bill proposes an

extension of the period. Under the current Act the

period of suspension will expire on 14 April 1991.

The government is introducing the bill in an

attempt to ensure industrial peace - - -

BRENNAN J:  What are we looking at this speech for,

Mr Bennett?

MR BENNETT: For the purpose, Your Honour, of demonstrating

that the purpose of this legislation is to impose a

consequence on activities which have taken place

while the federation was outside the industrial

system.

BRENNAN J: But the purpose must be derived surely from its

terms, not from the speech.

MR BENNETT:  Your Honour, in my respectful submission, where

one has to demonstrate purpose it is permissible to

refer to legislation for this reason. It was

certainly done in the Castlemaine Tooheys case

where this Court was referred to debates in the

South Australian Parliament which said, in effect,

"The purpose of the legislation is to prevent the

West Australian company coming into South Australia and competing", and that was used to assist the

argument which was ultimately accepted that the

purpose of the legislation was that rather than the

environmental purpose.

BRENNAN J: Whatever might be the situation with respect to

section 92, it seems to me to be a large step to

say that evidence of the motive of the minister in

introducing it is to be looked at for the purpose

Owens	5/6/91 of determining the purpose of legislation when the question is whether or not it falls within the
power.
MR BENNETT:	I would not attempt to support the proposition

Your Honour just put to me, with respect. I would

not suggest for a moment one is entitled to look to

motive or the motive of the minister but one is

entitled, in my submission, to look at the second

reading speech as indicating a purpose. The second

reading speech is, particularly now since the
enactment of section 14B, very composed and
composed with a view to setting out for courts
considering interpretation questions various

matters relevant to the legislation. It is,

therefore, not unreasonable in my submission to

look at such speeches for this purpose which is

seeing if the parliamentary purpose in enacting the

legislation falls within a constitutionally

justifiable purpose.

BRENNAN J:	I understand the argument.
MR BENNETT:	I will also be submitting that one can reach the same conclusion without this exercise and I
will come to that in a moment.
The authority for the proposition that one can look to purpose rather than motive - it is on my
list of authorities. It is Stenhouse v Coleman,
69 CLR 457 at 471 in the judgment of
Mr Justice Dixon as he then was.

The passage continues:

There is no doubt in the Government's view

that the attitudes and behaviour of the

Builders Labourers Federation (BLF) have not

changed in the past four and a half years and

it continues to be a threat to law and good

order -

I will not take Your Honours right through this but

on the second page, page 3638, what is said in the

first column at about point 6 makes very clear the

purpose of the legislation. It says:

The legislation introduced in 1986

deregistered the Federation for a period of

five years. This was done in the hope that

the Federation would learn that the type of

industrial behaviour it adopted had no place

in the Federal industrial relations system and

that it would therefore alter that behaviour.

In fact, the Federation has not altered its

behaviour in the slightest.

Owens 4 5/6/9

Then they go on to describe some incidents in

Melbourne.

So it is not said that, "We said five years before, on reconsideration five years was not

enough because of what took place within the

system". What is said is, "Since it left the

system, and has been outside it, we have treated it
as being in effect on probation; we have looked at
what has occurred while it was outside the system;
and our purpose is, based on that conduct, to
exclude it from the system".

Now, there has been a trilogy of cases which have dealt with deregistration of the federation.

I might just very briefly take Your Honours to each

of them because they do show that there are limits

on the extent of this power, although none of them

have defined that limit precisely. The first is

The Queen v Ludeke, 159 CLR 636. This was a case

concerning the original legislation and that
legislation in effect required certain proceedings

to take place before deregistration. At page 647,

the extent of power was considered by the Court and

at point 3 on that page, Their Honours said this:

It is firmly settled that it is

incidental to conciliation and

arbitration ..... to provide for the

registration as organizations -

of bodies -

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.

And over the page on 648, at point 3, there is a

reference to some earlier authority, then:

That principle of that decision has been

followed and applied in a number of

cases ..... In the latter case Mason J -

as he then was -

indicated that the power of the Commonwealth
to regulate the activity of organizations was

not without limit -

and Your Honour is cited as having said:

Owens 5/6/91

"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 -

detrimental activities -

whether it does so by denying capacity to the

organization or by prohibiting it from

engaging in certain activities."

The other passage is at the end of 649, the last

two lines:

The argument that the Act is not within the power ..... is impossible to sustain in the

light of the Seamen's Union case 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 ..... equally enables the Parliament

to cancel the registration of all or any

organizations, if that seems ..... to be

desirable.

And then, a bit lower down, against the words

"might be deregistered" .at point 4:

The power given by the Act to the Minister to

direct the candellation of the registration of

the Federation is not unfettered; it depends

upon the Commission making a declaration that

it is satisfied -

and that was the effect of the earlier legislation.

When the next Act was passed, the Act which

bypassed the commission and bypassed the pending

proceedings and simply deregistered the body, this

Court upheld that legislation in the Australian

Building and Construction Employees Federation v

Commonwealth, 161 CLR 88, and Their Honours at page

94 applied the decision in Re Ludeke, and just

below half-way down that page, just after the

reference to the Conciliation and Arbitration Act,

Their Honours said:

It follows that a law which cancels or

withdraws the registration of such an

organization, like a law which authorizes the

registration of an organization, is a law

Owens 6 5/6/91

which operates on the subject matter of the

power, notwithstanding that its consequence is

to deny to the particular organization a

capacity to participate in the system.

There is then a discussion of another argument which does not arise in this case, about judicial

power.

At the very end of the decision there is a

single sentence dealing with the five year

suspension, and in relation to that, in the last substantive sentence of the judgment on page 97, Their Honours said:

What we have already said about the scope of
the legislative power conferred by

section 5l(xxxv) of the Constitution is an

answer to the submission. Parliament may in

the exercise of the power determine for what
time a non-registered association is to be

excluded from registration.

We stress that in this case it has not done

that. It has not said, "Well, we said five years

before but on reconsideration we think 10 years

would have been more appropriate". What it has

done is to seek, in effect, to penalize conduct

occurring outside the system.

McHUGH J: Yes, but could not the Parliament forbid an

organization from ever becoming a registered

organization. What is there to stop Parliament

from saying the XYZ employers federation shall

never be registered .as an organization?

MR BENNETT:  There are two answers I make to that. The

first is that if that had been done in 1985 it may

well have been valid, but that is not what was

done. What was determined then as appropriate on

the basis of the events which had occurred while it

was an industrial body was a five year suspension.

What he has done now is not to say, "On

reconsideration we think it should have been

permanently barred or barred for 10 years", what he

has done is to say, "We want to visit a consequence

on behaviour outside the system", and it is that

which stretches it too far.

The other answer is that it may be that a

permanent ban on a body ever applying goes beyond

the power, but it is probably not necessary to
consider that question in this case. There may be

a question as to whether that goes beyond the

purpose.

Owens 7 5/6/91

MASON CJ: But is that answer consistent with what is said

in the judgment at page 95?	A little more than
half-way down:

Just as it is entirely appropriate for

Parliament to select the organizations which

shall be entitled to participate in the system

of conciliation and arbitration, so it is

appropriate for Parliament to decide whether

an organization so selected should be

subsequently excluded.

MR BENNETT:  Your Honour, the difficulty with that is that

what has occurred in this case is that in a

situation where there is legislation providing that

the body can be readmitted to the system, if it

satisfies the Commission of certain matters, those

being matters which are basically fundamental to

the constitutional fact which needs to be

established, Parliament has said, "We, because of

your activities outside, will say that you cannot

make that application and be considered on your
merits for another period of five years" and,

Your Honour, it is not a question of selecting the

bodies which go into the system; it is rather

saying, "We will seek to impose a sanction on

activities which occurred outside the system", and

it is that which is the vice in it and is the

stretching one step beyond what is authorized.	The
court, of course - - -

DAWSON J:	Why can you not say that Parliament regarded five years as being an appropriate period during which
the organization could show itself to be an
appropriate organization to be registered. As
events have turned out, five years was not long
enough and further time is needed.

MR BENNETT: Well, Your Honour, because within those words

"as events have turned out", lies the assumption

that one is entitled to look at conduct of bodies

outside the system and impose a sanction in

relation to that conduct by reference to further

deferral of deregistration.

DAWSON J: Yes.

MR BENNETT: Well Your Honour, it is a question of what the

limits are; it is ultimately a question of degree.

One cannot say there is a bright line at which

something is beyond the purpose of power or some

things within it. The power is to enable

conciliation and arbitration of interstate

industrial disputes. One permits determination of

registration and deregistration; one permits

determination of periods and one permits dealing

with conduct within the system. That is within the

Owens 5/6/91

ambit of the power although at its outer most

limits. This case goes one step further and it is

ultimately a question of degree.

McHUGH J:	Mr Bennett, the legislation does not exclude the builders labourers from participating in the
system, does it? It only prevents it being
registered.
MR BENNETT:	There are certain restrictions which were dealt

with in the case I am about to come to, in

Billing's case, in relation to the persons who are

members of the federation being officers of other organizations. There are certain restrictions of

that type. But it does not forbid the rank and

file members being members of another organization

which would -

McHUGH J:  And that is what happened in the previous

deregistration which Justice Evatt dealt with. She

allowed, in effect, the unregistered organization

to appear. That was the effect of it.

MR BENNETT: That is very different to what is happening

here, Your Honour.

McHUGH J: Yes, I know.

TOOHEY J:  Why do you describe it as a question of degree,

Mr Bennett? I rather thought that the argument you

were seeking to mount earlier was that it was not a

matter of degree so much as that Parliament had

chosen to look at the conduct of the organization

post-deregistration rather than at its conduct

pre-deregistration. Whether you can make good that

argument or not is another matter, but how is that

a question of degree?

MR BENNETT:  It is degree in this sense, Your Honour, that

it is the degree of how far a purposive power

extends.	And the question of degree is it extends
purposes, as a result of conduct within the system.	to situations where a period of deregistration is imposed, in effect, as a sanction or for protective
The line is crossed when one imposes it as a
sanction or for protective purposes where the
conduct is outside the system. That is the
question of degree, Your Honour.

TOOHEY J: Thank you.

MR BENNETT:  The third case is Re Australian Federation of

Construction Contractors; ex parte Billing. It is reported only in the Australian Law Journal Reports

and the Australian Law Reports. I think

Your Honours have the latter reference which is

68 ALR 416.

Owens 9 5/6/91

That was a case involving nexus and degree.

What occurred there was that an employee of the

federation was not entitled to appear as an

advocate for another industrial body, and the

question was whether that went too far. The

important passage is at page 421 where the argument

put forward on behalf of the prosecutor is set out.

Your Honours see at the very top of the page it

said:

The second argument advanced for the

prosecutor is that in so far as

section 4(6) ..... denies to an

organisation ..... in this case the Operative

Plasterers' and Plaster Workers' Federation of

Australia, any entitlement may be represented

by an employee of a non-registered
organisation ..... the provision is beyond the

power of the Commonwealth Parliament to

legislate ..... Such a provision is said to be

remote from the subject matter of the

conciliation and arbitration of interstate

disputes to fall within the power. It may be

observed that in presenting the argument,

counsel asserted several times that the

sub-section operates to prevent both a present

and a former employee or member of a

proscribed association from
participation ..... If this were so, the

argument would assume a different character.
It would produce an internal

inconsistency ..... But in making is submission,

counsel presents too wide a view of

section 4(6). It makes no reference to former

officers, employees ..... So stated, the

provision in our view is clearly within power.

So, that illustrates there are limits. The Court

was of the view that it may have been beyond power

if the legislation had said that no former employee

of the federation could represent an industrial

body. It did not, of course, decide that question
but it is a useful indication of the fact that the

scope of the power is limited.

In paragraph 7 we have referred to the reason

why cancellation or withdrawal of registration is
within power and that reason is that it is

incidental for the purpose of preventing and

settling industrial disputes that the system should

be able to protect itself against a body which

abuses the system in some way and one method is to

exclude it. We give the homely analogy of a

teacher who is empowered to act for the purpose of

educating children who suspends a naughty child

from the classroom. The suspension may not educate

but it can deny education for a short period, but

Owens 10 5/6/91

it is incidental because of the need of the system

to control abuse occurring within 'it. But, that

purpose is not achieved or promoted or even

assisted by the continuation of a suspension on the
basis of acts taking place while the body is

outside the system. At this point, the incidental

power has been stretched too far.

McHUGH J: But your argument achieves that the Parliament

has got to have some good reason but what I was

putting to you earlier was that the Parliament does

not have to have any reason for excluding. They

can just put you out of the system, full stop.

They do not have to provide a system of

conciliation arbitration. If they said that they

wanted to abolish the system, well that would be

constitutional. If they said, "Well, employers - certain types of dispute are not to come into the

system", that would be constitutional. Why cannot

they simply say, "Well, this organization can't

come within the system", full stop, "ever"?

MR BENNETT:	They have not, Your Honour - - -
McHUGH J:	I know they
MR BENNETT:	- - - and what they cannot do is do that on the basis of acts it has done which are unrelated to
the system, which are outside it.  And that is
really the problem here. It is not as if they have
said, "The type of organization which we will admit
is X", it is not as if they already have
legislation which says that we cannot get back in
the system unless certain matters are demonstrated.
What they have said is that "Because you have done
certain things outside it we are going to give you another five year suspension".
McHUGH J:	You say that and you rely upon the second reading

speech but can you find that purpose in the

amendment itself?

MR BENNETT:	Only this way, Your Honour, that the Parliament did not originally say what Justice McHugh puts to
me as something it might have said.  It did not
say, "You are suspended forever" nor did it say, "You are suspended for 10 years", it took the view that five years was the appropriate period bearing
in mind what had occurred within the system. So,
we know that was the approach taken. What is now
said is, "It shall be extended for another five
years". That can only be in the absence of any other material for the purpose of dealing with events which have taken place during the five years dealing with some change of circumstances. So, one gets there without the second reading speech but the second reading speech makes it clear.

Owens 11 5/6/91

TOOHEY J: Well, that is one view. It is not the only view

though, is it? Is it not equally open to the

approach that Parliament has simply decided that

the five years it originally imposed was not

adequate?

MR BENNETT:  Your Honour, we would submit that is a less

likely view and that really blends with the second

argument I am about to put, which is that

ultimately the onus of demonstrating the relevant

constitutional fact lies on the Commonwealth rather

than us, and in the absence of any evidence as to the constitutional fact one must assume it in the

negative. But, we would submit, simply, that one

assumes that Parliament has an intention, that it does what it deems to be appropriate at the time,

and that the amendment shows that it regards facts

as having changed.

BRENNAN J:  Mr Bennett, do you perceive any distinction

between the grounds of judicial review of this
legislative power and the grounds of judicial

review of an administrative power?

MR BENNETT:	Yes, Your Honour. What one is inquiring into in the present case is simply whether legislation
is for a certain purpose.  The question whether
legislation is for that purpose is substantially a
question of law.  The Court has laid down, in a
number of cases in relation to different purposive powers in section 51, the extent to which one can
go in considering that purpose. Those
considerations may not be coextensive with the
purposes one considers in applying judicial review
to an administrative decision, where there are
other factors one would take into account.

I suppose, if the sole ground for the

particular judicial review was that something was

beyond power, where the administrative power which

had been given was a purposive power, possibly in

that situation the considerations would be the

same, but only in that very narrow situation.

BRENNAN J: But in both cases it is open to the Court to

inquire into the purpose of the exercise of the

power.

MR BENNETT:	The purpose but not the motive, Your Honour, and the distinction is, in some cases, a fine one,
but there is a distinction.  Your Honours, the
phrase used by Mr Justice Dixon as he then was, in Stenhouse v Coleman, at page 471, was:

No doubt it is possible that the "purpose"

here may be another example of what

Owens 12 5/6/91

Lord Sumner described as "one of those so- called intentions which the law imputes; it is

the legal construction put on something done in fact" (Blott's Case (2)). For apparently the purpose must be collected from the

instrument in question, the facts to which it applies and the circumstances which called it

forth.

And that is the line of country which - - -

BRENNAN J:  One can readily understand that because that is

a question of construction, but as I understand

your argument, you are looking to the subjective

purpose of the repository of the power.

MR BENNETT:  Your Honour, in my submission one can take that

small extra step. The section 92 case is the

clearest example of which I can think, the

Castlemaine Toohey's case, and I appreciate there

is a distinction between section 92, which is a

restriction on power, and section 51, which confers

power, but the analogy is that if one has

legislation which, if it has purpose Xis invalid

in section 92, but if it has purpose Y is valid,

one may look beyond the mere terms of the statute

to see what the purpose is. And where one sees in

Parliament members saying, "We want to do this to prevent someone selling his beer in South

Australia" rather than "We want to do this to

protect the environment", the Court can look at it

to see if the relevant purpose is established.

In my respectful submission, it is a small

step from that to this. The analogy is good,

because where one can do something validly for one
purpose but invalidly for another, if the minister

says in his second reading speech, "We are doing this for purpose X" - let us assume the minister

had gone even further than he has gone.

Let us assume he had said in his second

reading speech, "We consider it important to

prevent the sort of conduct which was engaged in by

this body during the last five years at these

Melbourne building sites. In order to prevent that

we wish to impose a sanction additional to that

which may be imposed by the criminal law. For that

reason we are adding five years to the period of

suspension". Assume he had put it that way, it is

very hard to say that that can be justified by a

purpose of facilitating conciliation and

arbitration of an industrial dispute or of

industrial disputes by using the registration or

deregistration power. It becomes something which

is, because of that purpose, taken outside the area

which is otherwise permissible.

Owens 13 5/6/91

BRENNAN J:  I do not wish to delay you further, but it seems

to me that "purpose" is being used here in two

senses, and that is, one purpose is the purpose

which is to be collected from the operation of an

act as in the South Australian case; the other is

the purpose which leads to the introduction of an

Act, the operation of which is neutral.

MR BENNETT: Well, Your Honour, the first purpose would be

demonstrated in this case. If what is said is, in

order to protect the industrial system against

abuse, we look at what has occurred outside the

system, that might be closer to it, but that is not

what is said. It is not said - what we would

submit is, looking at the second reading speech as

a whole, what it is really saying is, "This type of

conduct will not be tolerated, we are going to

extend the suspension for another five years".

GAUDRON J: 

Mr Bennett, I also have a problem in this area

of "purpose", that is this: one can readily
understand that by ascertaining whether a law is
capable of serving a particular purpose, you may

therefore characterize it as a law with respect to

something or other, I do not see why you can look

and say, "Well it will serve another purpose," or,

"It was introduced for another purpose, therefore

it is not a law with a respect to the subject

matter." Your argument seems to be assuming what I

thought was a heresy that was long since put to

bed.  It cannot be a law with respect to two

matters.

MR BENNETT: Well Your Honour, certainly a law which, I have

to concede, extends a suspension and thereby

prevents a body having access to a system on its

own with no more, may be capable of falling within

the permitted purpose, but where one can
demonstrate that the law is enacted, because of

events which are too remote from the system and for

purposes connected with those events, then, in my

respectful submission, one says one resolves the

ambiguity as to purpose by saying, no, this is not

a law which has the purpose which it might have.

GAUDRON J: But that argument is assuming that purpose is

the sole determinant of validity, and what I am

putting to you is that the method of constitutional

construction that has hitherto commended itself, is

not that at all. Purpose may indicate that it "is"

a law with respect to something, but "will not" is

not the sole determinant and if your argument were

right, it would be to the effect that you cannot

use the power with respect to trade and commerce to

preserve environmentally sensitive areas.

Owens 14 5/6/91

MR BENNETT: Well Your Honour, the trade and commerce is not

a purposive power.

GAUDRON J: But in one sense, conciliation and arbitration

is only a power that is properly described as

purposive, in so far as it may tell you what is

within the power or what is outside the power, in

particular contexts.

MR BENNETT: We would submit not, Your Honour. If one looks

at the wording of placitum (xxxv) it is:

Conciliation and arbitration for the
prevention and settlement of industrial

disputes -

not - - -

GAUDRON J: Yes, but it is not for conciliation and

arbitration. It is - the purposive aspect limits

conciliation and arbitration. It does not define

the nature of the power primarily.

MR BENNETT:  I would submit not, Your Honour. For example,

one would not say that conciliation and arbitration

of private disputes having nothing to do with

industrial law fall within this. The extent of the

power, we would submit, is a particular means,
namely conciliation and arbitration, of preventing
and settling industrial disputes, and the core of

the power is therefore matters for the purpose of preventing and settling industrial disputes which

happen to fall within the words "conciliation and

arbitration".	We would submit it is not a
question of merely limiting those words.	It is a

pure purposive power and absent the purpose, it is

outside the power, we would respectfully submit.

It can certainly be extended a little by the

incidental power, but it still has ultimately to be

within the purpose.

DAWSON J:  So that really what you say is that you just have

to ask not what does the legislation operate.upon,

but what does it operate for.

MR BENNETT: Yes, Your Honour.

DAWSON J:  And the mere fact that you have a system which

may be said to be for the purpose of conciliation

and arbitration does not mean that every time you

tamper with that system by a separate Act, that Act

is for the same purpose.

MR BENNETT: Yes, that is so, Your Honour. There are

limits. If one takes a different area, if one

takes the area of contempt of court, it would be

within placitum (xxxv) to have legislation dealing

Owens 15 5/6/91

with contempt of court before a body concerned with

industrial disputes. If one then went a step

further and started to impose some disability from

State Government office on a person who has never

been convicted of contempt of court in an

industrial commission, one would say, "Well, that

is going too far. That is no longer within the

purpose". That is why I say ultimately it is a

question of degree in these cases.

Your Honours, the second argument is related

to that, and it concerns the necessity to prove
constitutional fact. Might I start with the

statement of Justice Fullagar in the Communist Party case, 83 CLR 1 at page 261. This is the leading passage on the doctrine of what is

described as "privilegium", the privately operating

Act. His Honour says this at point 2:

I now come to the Act itself. The most

conspicuous feature of the Act is s.4, and the

most conspicuous feature of s.4 is that it

does not purport to impose duties or confer

rights or prohibit acts or omissions, but

purports simply to declare a particular

unincorporated voluntary organization unlawful

and to dissolve it. It is, one supposes, to

be classed as a public enactment as distinct

from a private enactment, but it is, or at

least is extremely like, what the Romans would

have called a privilegium. Such a law (for I

would not deny to it the character of a law)

may well be within the competence of the

Commonwealth legislative power, which is,

within its constitutional limits, plenary.

This is, of course, a fortiori in the case of a purposive power.

It would be impossible, I should think, to

challenge s.4 if the Parliament had power to

make laws with respect to voluntary associations or with respect to communists.	It would be a law "with respect to" each of
those "matters". So an Act of the Parliament
dissolving the marriage of A with B would be a
law with respect to divorce. It would be a
privilegium, but what the Act actually did would be a thing which fell within a class of subject matter on which the Parliament was
authorized to legislate. The Parliament has
power to make laws with respect to divorce, and the Act is a law which effects a divorce.
It is a privilegium, but it is a good law.
But, if the Parliament enacts a privilegium
which on its face bears no relation to any
head of legislative power, it is likely to be

Owens 16 5/6/91

extremely difficult to justify it under any

head of power. In such a case (and s.4 is an

example of such a case) there can, in my
opinion, be no presumption of validity, and

the Act, if it is to be upheld at all, can

only be upheld on the basis of special and particular facts relating to the person or class who or which is the subject of the
privilegium. Suppose, for example, an Act of
the Parliament providing that all the property

of AB should be delivered to a receiver X and

realized and that the proceeds should be

distributed among the creditors of AB. Such

an Act might (I do not say it would) be a good

law with respect to bankruptcy if the

be a law with respect to

liabilities of AB at the commencement of the possibly otherwise

bankruptcy. It seems to me that there could

not in such a case be any presumption of

validity, for the simple reason that there

could not be any presumption that the

liabilities of AB exceeded his assets.

So, where one has a case like that, one has a

law which imposes some disability on a particular

person or organization and it is said to be within

a head of power, the onus lies on those who support

the law to prove the facts which bring it within

the head of power. For example, the bankruptcy one

is the clearest. That law would be perfectly valid

if the fact is he is insolvent; quite invalid if

the fact is that he is insolvent. That must be

established.

Mr Justice Webb made the same point much more

briefly at page 244 where at the top of the page at

line 5, His Honour said:

But the onus of proving that a statute of the limited powers, is within power is on those

who affirm its validity, where, as here, the

Parliament assumes to exercise what are

ordinarily State powers, i.e., the dissolution

of a body and the forfeiture of its property,

not being a corporation ..... This burden of

proof of constitutionality cannot be shifted

by resorting to recitals: by putting the

evidence and argument in recitals instead of

to the courts. It is for the courts to

examine and determine the question of

constitutionality when that is challenged and

for those who affirm constitutionality to

prove it in the ordinary way.

Owens 17 5/6/91

GAUDRON J:  But the few words that you did not read really

do answer this case, do they not, that is:

not being a corporation created by or under a

statute of the Parliament.

Here, this is precisely what they are dealing with:

a corporation created by or under a statute of

the Parliament -

enacted pursuant to the power with respect to

conciliation and arbitration.	Your connection with
power is self-evident.

MR BENNETT:  If it were not a purposive power, yes,

Your Honour, but the connection has to be with the

purpose. If we were a corporation and an act was

passed by dissolution, I would have no answer to

Your Honour's question because that is not a power

for the purpose of promoting corporations.

GAUDRON J:  Mr Bennett, I think you are using "purposive" in

a very odd way. Your argument must go to the point

where Parliament could not exclude from the

consideration of the Commission it established, for

example, certain sorts of arguments, certain sorts

of claims - could not define how they should be

determined.

MR BENNETT: It could do that, Your Honour.

GAUDRON J: It could do that.

MR BENNETT:  There may be cases where that would go beyond

the purpose but it is hard to imagine them.

GAUDRON J: Take, for example, provisions that preference

shall not be given to trade unionists or preference

shall not be given to non-unionists, or the like.

MR BENNETT: That would be within power, Your Honour. That

is within the purpose.

GAUDRON J:	Even though that would mean - - -
MR BENNETT:	Even though views might differ on whether it

actually promoted it. One does not have to show

that there would be an actual promotion of

conciliation and arbitration. Clearly, one can do

something which -

GAUDRON J: Well, it may. On one view, it may result in

disputes which are incapable of resolution by

exercise of the power.

Owens 18 5/6/91

MR BENNETT:	Your Honour, the Court does not sit in judgment on whether the way in which the purpose is to be
effectuated is one which is likely to succeed. The
Court does not sit in judgment in that in purpose cases. It does not say, "We think that it would not assist conciliation and arbitration to include or exclude preference to unionists", but that is
not the problem here.  The problem here is whether
one can establish that there is a relationship of
purpose between the continuation of a suspension on
the basis of acts done outside the system and, I
suppose, the need to protect the system from abuse
from within.

I will not take Your Honour to the other

references in that case, I have referred to them in

the submissions at the bottom of page 3. A

slightly wider view was taken by Justices McTiernan

and Kitto who took the view that it was not for the

courts at all to determine the question and one

would simply assume there was no power. But

Justice McTiernan at 205 to 206 and Justice Kitto

at 272 point 8 and 278 point 1.

There were also some references to this

doctrine in the Lemonthyme Forest case, Richardson

v Forestry Commission, 164 CLR 261, and at page 294

Your Honour the Chief Justice and Justice Brennan

at point 2 affirmed the principle to which I have

just been referring in these words, it is the first

full paragraph on the page:

In relation to validity it remains for usto consider the defendants' submission that

there is no sufficient basis for concluding

that the area has potential world heritage

characteristics and for subjecting the

entirety of the protected area to the regime
of protection during the interim protection
period. It has been said that the Court must

be satisfied of every fact the existence of

which is necessary in law to provide a

the Communist Party case and some other cases are constitutional basis for legislation -

cited -

notwithstanding that it is "highly

inconvenient" for the Court to be engaged in

making factual inquiries.

And Your Honour Justice Deane, at page 311 at

point 2, the beginning of the long paragraph, said

this:

First, there must be identified a purpose

or object, itself a legitimate subject of

Owens 19 5/6/91

external affairs: eg the carrying into effect

of a treaty, the performance of an

international obligation or the obtaining of

an international benefit. The reference to

such a purpose or object is not, of course, to the subjective motives or purposes ..... It is a

reference to the purpose or object of the law

itself - that which it can be seen to be

designed to serve or achieve.

And on the next page, in relation to proof of that,

Your Honour said this, at the middle of the page

against the word "to" in the left-hand margin:

In my view, it is not necessary for this Court

to be persuaded that the particular provisions

are, in fact, appropriate and adapted to the

designated purpose or object. That is a

matter for the Parliament. Obviously, the

relevant requirement will be satisfied if the

Court is so persuaded. As I have indicated

however, it will, in my view, suffice if it

appears to the Court that the relevant

considered to be so appropriate and adapted.	provisions are capable of being reasonably is with respect to purely domestic matters, it is, however, for the Commonwealth or those who
would sustain the validity of the law by
reference to ulterior object or purpose to
point to material which makes it possible to
say that the law can be characterized as a law
with respect to exiernal affairs.

There is a further reference in Your Honour Justice Gaudron's judgment at page 341 where, in

the long paragraph beginning at point 5,

Your Honour says:

The absence of a recognizable obligation attaching to the Lemonthyme and Southern

Forests areas as heritage areas is not

necessarily fatal to the validity of

section 16. However, the question of validity

must be answered by reference to other

considerations, for the Court cannot uphold
the validity of a law by reference to the
existence of some fact or state of affairs

unless satisfied of the existence of that fact

or state of affairs. In satisfying itself on

the validity of an enactment, the Court may

make "every reasonable intendment" in favour

of the legislation. However, given the

uncertainty manifest in the Act as to whether

or not any area within the Lemonthyme or

Southern Forests area is a world heritage area

or contributes to the integrity or values of a

Owens 20 5/6/91

world heritage area, no reasonable intendment

in favour of the legislation can be made by

reference to any Convention obligation

attaching to the areas as heritage areas.

Now, we note again, that section S(l)(b) sets out a

number of matters as to which, but for the

extention of time, the federation would be entitled

to reregistration on proof of, and those matters

may well be co-extensive with the constitutional

fact which has to be shown, but what the Parliament

has said is that, "We decide that, notwithstanding

that you cannot get registered unless those facts

are shown, we are going to exclude you." That must
mean that Parliament is of the view that there are

some other matters which have occurred, which it

wishes to visit a sanction on, other than the mere

desire to protect the system from abuse within.	If
it was only concerned to protect the system from
abuse from within, it already has the legislation, but it has added something and the question concerns the validity of that addition and so, we
submit - - -

BRENNAN J: 

Why is it not simply a case of the Parliament

saying, "They should not be back in, in our view,
at the moment. If they apply for readmission, the

Commission might go wrong, and in our view they

should not be let back in for the sake of the
system."?

MR BENNETT: Well, Your Honour, that is a possible, but we

would respectfully submit, unlikely construction.

That assumes that Parliament does not have

confidence in the system which it itself has set up

and in my respectful submission one would not make

that assumption on its own.

There is no evidence of the underlying

constitutional facts, the onus lies on the

Commonwealth. We submit, that leads to the result

that either one should determine that the Act is

unconstitutional or, if an application for leave to	amend the defence were made and granted, answer the
question asked in the way I have suggested at the
bottom of page 4, which is:

yes, unless it is established that it would

inhibit the prevention and settlement of

industrial disputes for it to be re-admitted

to the industrial system.

I will just check that	I have my "yeses" and "nos"
the right way around.	If Your Honours will pardon
me for a moment. Yes,	I do have. 4(a), the answer
I seek should be "yes"	rather than "no". I have
the negative the wrong	way around. .I would be

Owens 21 5/6/91

grateful if Your Honours would make that

correction. So should either answer the question

asked "yes" or:

if an application for leave to amend the

defence is made and granted, answer the

question -

in the manner provided in paragraph (b).	May it
please the Court.

MASON CJ: Thank you, Mr Bennett. Yes, Mr Solicitor.

MR GRIFFITHS: If we can hand the Court our contentions. If

the Court pleases, there is little which we can add

to what the Court has already said to support the

validity of the amending legislation.

It is our general submission that because

registration and deregistration of employer and

employer organizations are central to the

conciliation and arbitration system, Parliament

may, in the exercise of the power, create such

organizations or having made them abolish them on

such conditions and with such consequences as it

sees fit.

It is perhaps sufficient to take the Court to the brief extract for the judgment of

Justice Isaacs, which is reproduced in the Re

Ludeke, 159 CLR 647, where this point is made plain

enough and accepted by this Court in this, as my

friend puts it, trilogy of cases. At 159 CLR 647,
Their Honours refer to the statement of

Justice Isaacs in the Australian Commonwealth

Shipping Board v Federated Seamen's Union of

Australasia case where His Honour said, at the foot of the page:

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 an

officer in whom Parliament places confidence

for the purpose and to whom it gives the
necessary discretion.

Then the Court goes on and also refers to the

part of Justice Starke's judgment, which I will not

Owens 22 5/6/91

now read to the Court, and draws the thread
together in the passage which my friend has taken
the Court to in part but not in whole at page 650.

At page 650, at the top of the page, the Court

said:

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.

And, of course, this matter was further taken up by the Court in volume 161 of the Commonwealth Law

Reports, and if I could take the Court to the

passage at page 94 in the Australian Building Construction Employees and Builders Labourers'

Federation v The Commonwealth, 161 CLR, after

referring to the passage of Re Ludeke, to which I

have just taken the Court, this Court then goes on

to say:

This is because registration of organizations

of employers and employees is a central

element in the system of conciliation and

arbitration which the Conciliation and

Arbitration Act established for the prevention

and settlement of interstate industrial

disputes. It follows that a law which cancels

or withdraws the registration of such an

organization, like a law which authorizes the

registration of an organization, is a law

which operates on the subject-matter of the

power, notwithstanding that its consequence is

to deny to the particular organization a

capacity to participate in the system.

In our submission, that is the only issue relevant

to facts or relevant to characterization for the

purpose of characterization of the law as falling

within the subject-matter of power. And if I may

take the Court briefly to just one citation in

support of that, and that is to a part of

Your Honour the Chief Justice's judgment in Actors and Announcers Equity Association v Fontana Films

Owens 23 5/6/91

Pty Ltd, 150 CLR at page 201 to page 202. At

page 201 Your Honour the Chief Justice referred to

the judgment of Justice Kitto in Fairfax v Federal

Commissioner of Taxation and, of course, the passage where His Honour says:

it is a question as to the true nature and

character of the legislation: is it in its

real substance a law upon, 'with respect to',

one or more of the enumerated subjects, or is

there no more in it in relation to any of

those subjects than an interference so

incidental as not in truth to affect its

character?"

And Your Honour went on to say:

This is to say that law is to be characterized

by reference to its direct legal operation

according to its terms, not by reference to

the motives which inspired the legislator or

the purpose or the indirect consequences which

it seeks to achieve.

In the Billing judgment, and if I may give the

Court the citation to the Australian Law

Reports: 68 ALR 420, the Court said in respect of

reliance upon second reading speeches, at page 420:

Reliance is also placed on a sentence in the

second-reading speech of the Minister when

introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth) as

amended, does not permit recourse to that

speech for the purpose of departing from the

ordinary meaning of the text unless either the

meaning of the provision to be construed is

ambiguous or obscure or in its ordinary

meaning leads to a result that is manifestly

absurd or is unreasonable.

Of course, no such issue arises here. What my

learned friend seeks is to refer to parts of the

second reading speech, is elucidation of the motive

behind Parliament to exercise, we would submit, an

undoubted legislative power, which is directly at

the heart of the subject-matter, namely to provide
for the registration or nonregistration, or
incapacity to become registered, of bodies, and
with respect to Justice McHugh, we would pick up

Your Honour's observation to my learned friend,

that it is within legislative power for the

Parliament to provide that no particular body may

ever become registered within the system and to

exclude body from that system, for whatever reason

Owens 24 5/6/91

Parliament thinks fit in exercise of its power

under the Conciliation and Arbitration power.

In any event, when one goes to the second

reading speech, as my learned friend does, one

sees - and if I could just take the Court briefly

by reference to three particular paragraphs - that

what the Minister there does elucidate is the

circumstances that the organization has merely
continued the same activities which resulted in the

legislation initially determined as valid by this

Court.

If I could refer the Court to the paragraph on page 3637, the first column of the Minister's

speech beginning:

The Government is introducing this Bill in an

attempt to ensure industrial peace in the

building and construction industry.

That paragraph; the paragraph on page - - -

McHUGH J: What I do not understand about that is how

industrial peace is going to be threatened if the

federation is allowed to make an application.

MR GRIFFITHS:  Your Honour, we submit that it is within the

power of the Parliament to exclude this body from
participation in the conciliation and arbitration

system founded by federal legislation.

McHUGH J:  I understand that, but you are seeking to get

something out of the second reading speech.

MR GRIFFITHS: Well, not very much, Your Honour, because our

primary submission is that all this is irrelevant.

But my learned friend made a subsidiary point which

we say is subsidiary and constitutionally

irrelevant, Your Honour, that this material

establishes that the body is being penalized on

what it has done since deregistration. What we

refer to Your Honour is that the second reading

speech in these paragraphs would indicate that that

is not so, the body is subject to this sanction

because the legislature have taken the view - and

we say it is for Parliament completely in its own

discretion to determine this - that it is inimical

to the operation of the conciliation and

arbitration system for this body to be permitted to

become part of the system, in this case for a total

of a 10-year period, but our submission is that the

Parliament could say forever.

Perhaps Your Honour's comment to me really

leads us to what is, in essence, our s·ubmission on

Owens 5/6/91

this point, namely that we submit that section 5 of

the 1990 Amendment Act protects the federation only

in relation to registration within the conciliation

and arbitration system. That deals with the

matter, we submit, within the scope of the federal

power and that, in our submission, is the end of

the matter. If the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Brett.

MR BRETT:  If it please the Court, my learned leader and I

adopt the submissions of the Solicitor-General of

the Commonwealth and we have nothing further to

add.

MASON CJ: Thank you, Mr Brett. Mr Bennett.

MR BENNETT:  Only one matter, Your Honour. The references

in those cases to continued existence cannot be

extended to apply to continued non-existence. If

Your Honours please.

MASON CJ:  Thank you, Mr Bennett. The Court will adjourn

this matter to 2.15, and it may be that by then the

Court will be able to_ determine the course it will

take in the matter.

AT 11.27 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.18 PM:

MASON CJ:  The question reserved for the opinion of the Full

Court is whether section 5 of the Builders

Labourers' Federation Legislation Amendment Act

1990 (the "Amendment Act") is invalid. In the

opinion of the Court a negative answer to that

question is dictated by the judgment in the
Australian Building Construction Employees' and

Builders Labourers' Federation v Commonwealth ( "the

B.L.F Case"), (1986) 161 CLR 88 at page 95, where

it was held that it is within the legislative

competence of the Parliament, under section

Sl(xxxv) of the Constitution, to determine which

organizations "shall be entitled to participate in

the system of conciliation and arbitration"

established pursuant to that constitutional grant

of legislative power. Similarly, as the Court pointed out (ibid), it is "appropriate for the Parliament to decide whether an organization so

selected should be subsequently excluded [from that

Owens 26 5/6/91

system] and, if need be, to exclude that

organization by an exercise of legislative power".
Obviously, the exclusion or continued exclusion of

an unregistered organization from eligibility for

registration or re-registration, which is what is

involved in the present case, was seen in the B.L.F

Case as being at least as clearly within the

legislative power conferred by section 5l(xxxv) as
is the deregistration of an already registered

organization which is what was involved in that
case (see, also, Re Australian Federation of

Construction Contractors; Ex parte Billing,

(1986) 68 ALR 416 at 421; Reg v Ludeke; Ex Parte

Australian Building Construction Employees' and

Builders Labourers' Federation, (1985) 159 CLR 636

at pages 646 to 647, 650.)

The operation of section 5 of the

Amendment Act is to prevent The Australian Building

from being, or from being entitled to

Construction Employees' and Builders Labourers' unregistered,

apply to be, a registered organization for a

further period of five years after the expiration

of the original period of disqualification from

being so registered, which was imposed by the

Builders Labourers' Federation (Cancellation of
Registration - Consequential Provisions) Act 1986

(Cth). In that operation, section 5 of the

Amendment Act is plainly within the legislative

competence of the Parliament. Mr Bennett Q.C., who

appears for the plaintiffs, has attacked the

section on the ground that its purpose "is to

attribute a consequence ·to conduct of the

federation since its exclusion from the system".

In support of that submission he pointed to some

statements in the speech made by the Minister in

moving the second reading of the Bill for the

Amendment Act. However, even accepting that the

basis of the legislative exclusion of the

federation is its conduct since deregistration, the

position remains that the continued exclusion of

the federation from eligibility for re-registration

under the Commonwealth system of conciliation and

arbitration established by the Parliament, pursuant

to section 51(xxxv) of the Constitution, is within

the legislative power conferred upon the Parliament

by that subsection.

Accordingly, the question reserved for the

opinion of the Full Court is answered in the
negative.

MR GRIFFITH:	I ask for costs, Your Honour.
MASON CJ: Yes.

Owens 27 5/6/91

MR BENNETT: There is nothing I can say.

MASON CJ: Very well, there will be an order that the

plaintiffs pay the defendant's costs of the

question reserved.

MR BENNETT: If the Court pleases.

MASON CJ:  The Court will now adjourn until 9 am in

Melbourne tomorrow.

AT 2.24 PM THE MATTER WAS ADJOURNED SINE DIE

Owens 28 5/6/91