R v Spicer; Ex parte Australian Builders' Labourers' Federation

The case of *R v Spicer; Ex parte Australian Builders' Labourers' Federation* involved an application for a writ of prohibition directed to the judges of the Commonwealth Industrial Court. The prohibition was sought to prevent the judges from proceeding with an application made under section 140 of the *Conciliation and Arbitration Act 1904-1956*. This application, brought by a member of the Australian Builders' Labourers' Federation, sought to disallow certain rules of the Federation on the grounds that they were tyrannical, oppressive, and imposed unreasonable conditions on membership. The Federation argued that section 140 of the Act purported to confer non-judicial power on the Commonwealth Industrial Court, which is a federal court established under Chapter III of the Constitution, and that this conferral was therefore invalid.

The central legal issue before the High Court was whether section 140 of the *Conciliation and Arbitration Act 1904-1956*, which empowered the Commonwealth Industrial Court to disallow rules of an industrial organisation under certain conditions, conferred judicial power or non-judicial power. Specifically, the Court had to determine if the power to disallow rules based on criteria such as being "tyrannical or oppressive" or imposing "unreasonable conditions" was a valid exercise of judicial power that could be vested in a federal court. This question arose in the context of the Commonwealth Industrial Court being constituted as a federal court exercising the judicial power of the Commonwealth, as previously determined by the High Court.

The majority of the High Court, comprising Dixon C.J., McTiernan, Kitto, and Taylor JJ., held that the power conferred by section 140 was not part of the judicial power of the Commonwealth. Their reasoning relied heavily on previous decisions of the Court, particularly *Consolidated Press Ltd. v. Australian Journalists Association*, which had characterised similar powers under earlier legislation as non-judicial. The majority found that despite the transfer of this power to the newly constituted Commonwealth Industrial Court, which was established to exercise judicial power, the nature of the power itself remained non-judicial. They noted that the criteria for disallowance were vague and administrative in nature, and that the court's ability to act on its own motion and the discretionary language used in the section further indicated a non-judicial character. Consequently, the attempt to vest this non-judicial power in a federal court was deemed invalid.

The Court made absolute the order nisi for a writ of prohibition. This meant that the judges of the Commonwealth Industrial Court were prohibited from further proceeding with the application to disallow the rules of the Australian Builders' Labourers' Federation under section 140 of the *Conciliation and Arbitration Act 1904-1956*. The effect of this decision was to invalidate section 140 of the Act as an unconstitutional conferral of power.