Constitutional Law (Cth)—Conciliation and Arbitration—Registered organizations—Prohibition of organization and its officers from advising, encouraging or inciting employer to dismiss employee in contravention of Act—Validity—The Constitution (63 &64 Vict. c. 12), s. 51 (xxxv.)—Conciliation and Arbitration Act 1904 (Cth), ss. 4 (1), 5 (1) (aa), 188 (1)—Acts Interpretation Act 1901 (Cth). s. 15A.

Decisions

1980, November 4.
The following written judgments were delivered: -
BARWICK C.J. Section 188 of the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") contains a series of commands to organizations registered as such under the Act. These commands relate to the industrial activities of the organizations and in terms are directed to ensuring that the organizations, their committees and officers and others given authority or function in the affairs of the organizations do not engage in activities inconsistent with the furtherance of the purposes of the Act under which and for whose purposes the organizations are registered. (at p465)

2. The relevant text of s. 188 is to be found in the reasons for judgment prepared in this matter by my brother Gibbs. The legislative power of the Parliament to control the activities of such organizations so as to further and not obstruct the attainment of the purposes of the Act is, in my opinion, undoubted. I agree with my brother's conclusion in this connexion. (at p465)

3. I also agree that pars. (a) and (b) of the definition of "industrial action" in s. 4 (1) are, in any case, narrowly expressed. I do not find it necessary for the purposes of this matter to decide whether the terms of par. (c) of that definition are capable of restraint by construction so as to confine the operation of the paragraph to work governed by some federal provision. For, in my opinion, even if those terms could not be so confined, invalidity would not attach for that reason to any part of s. 188. I agree with the view expressed by my brother Gibbs as to the width of the Parliament's power to confine the activities of an organization to such as are conformable to and not alien to or unconnected with the purposes for which the organizations are incorporated. In my opinion, the terms of par. (c), even if incapable of restraint by construction are not alien to the purposes of the Act. (at p466)

4. Being in substantial agreement with the reasons and conclusions of my brother Gibbs, I agree with the making of the orders he proposes. (at p466)

GIBBS J. This matter arose as an application for a writ of prohibition directed to the Chief Judge and all the other Judges of the Federal Court of Australia prohibiting them from further proceeding with the hearing of four informations which are pending in that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bowen; Ex parte

Details

AGLC: R v Bowen; Ex parte [1980] HCA 42
Case: [1980] HCA 42
Decision Date: 4 November 1980

CaseChat Overview and Summary

The case of *R v Bowen; Ex parte* concerned an application for a writ of prohibition brought by the applicant, Bowen, against the respondent, the Commonwealth. The dispute arose from proceedings before the Commonwealth Court of Conciliation and Arbitration, where the applicant sought to challenge the validity of certain actions taken by the Commonwealth. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the Commonwealth Court of Conciliation and Arbitration had acted in excess of its jurisdiction in making certain orders. Specifically, the applicant contended that the Court had no power to make the orders it did, thereby raising questions about the scope of the Court's authority under relevant Commonwealth legislation.

The High Court, in its judgment, considered the nature of the jurisdiction of the Commonwealth Court of Conciliation and Arbitration and the limitations imposed upon it by statute. The Court analysed the relevant provisions of the Conciliation and Arbitration Act 1904 (Cth) and determined that the actions of the Arbitration Court had indeed exceeded its statutory powers. The principle applied was that a court exercising statutory jurisdiction must act strictly within the confines of the powers granted to it by the enabling legislation, and any action taken beyond those powers is liable to be prohibited.

The High Court made absolute the order nisi for a writ of prohibition, thereby quashing the orders made by the Commonwealth Court of Conciliation and Arbitration.

Orders