Owens v Commonwealth

[1991] HCA 20

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

RONALD GEORGE OWENS AND ORS v. COMMONWEALTH OF AUSTRALIA

5 June 1991

Decision

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON and McHUGH JJ. The question reserved for the opinion of the Full Court is whether s.5 of the Builders Labourers' Federation Legislation Amendment Act 1990 (Cth) ("the Amendment Act") is invalid.

2. In the opinion of the Court, a negative answer to that question is dictated by the judgment in Australian Building Construction Employees' and Builders Labourers' Federation v. The Commonwealth ("the B.L.F. Case") (1) (1986) 161 CLR 88 at p 95 where it was held that it is within the legislative competence of the Parliament under s.51(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 (2), ibid. it is "appropriate for Parliament to decide whether an organization so selected should be subsequently excluded (from that 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 s.51(xxxv) as is the deregistration of an already registered organization, which is what was involved in that case (3). See, also, Re Coleman; Ex parte Billing (1986) 61 ALJR 37, at p 40; 68 ALR 416 at p 421; Reg. v. Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 636 at pp 646-647, 650.

3. The operation of s.5 of the Amendment Act is to prevent The Australian Building Construction Employees' and Builders Labourers' Federation ("the Federation"), which is now unregistered, from being, or from being entitled to apply to be, a registered organization for a further period of five years after the expiry 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, s.5 of the Amendment Act is plainly within the legislative competence of the Parliament. Mr Bennett Q.C., appearing 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 s.51(xxxv) of the Constitution is within the legislative power conferred upon the Parliament by that paragraph.

4. Accordingly, the question reserved for the opinion of the Full Court is answered in the negative.

Orders

Answer the question reserved as follows:
Is section 5 of the Builders Labourers' Federation Legislation Amendment Act 1990 (Cth) invalid?
Answer: No.

Order that the plaintiffs pay the defendant's costs of the question reserved.