R v Sweeney; ex parte Northwest Exports Pty Ltd

[1981] HCA 22

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Murphy and Aickin JJ.

THE QUEEN v. SWEENEY; Ex parte NORTHWEST EXPORTS PTY. LTD.

(1981) 147 CLR 259

14 May 1981

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Membership—Conscientious objection—Certificate of existence of objection—Employer forbidden to dismiss certificated employee or prejudicially alter his position for non-membership of an organization—Employer forbidden to threaten to dismiss a certificated employee with intent to coerce him to join an organization—Validity of prohibition—Conciliation and Arbitration Act 1904 (Cth), s. 144A, The Constitution (63 &64 Vict. c. 12), s. 51 (xxxv.), (xxxix.).

Decisions

1981, May 14.
The following written judgments were delivered: -
GIBBS C.J. Before the Court is the return of an order nisi for a writ of prohibition directed to a judge of the Federal Court and to the Director of the Industrial Relations Bureau prohibiting them from proceeding further with the hearing of three informations laid by the Director which allege that the prosecutor, Northwest Exports Pty Ltd, has been guilty of breaches of s. 144A of the Conciliation and Arbitration Act 1904 (Cth) as amended ("the Act"). The ground on which the writ is sought is that s. 144A is invalid. It should be said immediately that even if this ground were made out it would not follow that prohibition should be granted, since it would appear to be within the jurisdiction of the Federal Court to hear and determine the informations whether or not the section under which they have been laid is valid; of course, if the section were invalid the proper exercise of jurisdiction would be to dismiss the informations. However, as will appear, it is unnecessary to decide the application on this ground. (at p261)

2. Section 144A of the Act provides as follows:
"(1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of section 132, the Registrar shall issue to the person a certificate to that effect.
(2) In sub-section (1) -
'conscientious beliefs' means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion;
'prescribed fee', in relation to an applicant under sub-section (1), means a fee equal to the annual subscription payable by the members of the organization that, in the opinion of the Registrar, is the organization that would, but for the person's conscientious beliefs, have been the appropriate organization for the person to join having regard to his past employment (if any) and his future prospects of employment. (3) Notwithstanding section 88F, no appeal lies to the Commission against -
(a) a decision of the Registrar to issue a certificate under sub-section (1); or
(b) a determination by the Registrar of the prescribed fee in relation to an applicant under sub-section (1).
(4) A certificate under sub-section (1) remains in force for such period, not exceeding 12 months, as is specified in the certificate but may be renewed from time to time by the Registrar for such period, not exceeding 12 months, as the Registrar thinks fit.
(5) An employer -
(a) shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization;
(b) shall not threaten to dismiss an employee, being a person in respect of whom there is in force a certificate under sub-section (1), or to injure such an employee in his employment or to alter the position of such an employee to his prejudice, with intent to coerce the employee to join an organization; or
(c) shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization.
(6) An organization -
(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5);
(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5); or
(c) shall not take, or threaten to take, any action having the effect, directly or indirectly, of prejudicing a person in his employment, being a person in respect of whom there is in force a certificate under sub-section (1), with the intent to coerce the person to join the organization.
(7) A contravention of sub-section (5) or (6) is an offence against that sub-section, punishable, upon conviction by -
(a) where the action constituting the offence has continued for more than a day - a penalty not exceeding a fine of $400 for each day during which that action has continued; or (b) in any other case - a penalty not exceeding a fine of $400.
(8) In any proceedings for an offence against sub-section (5) or (6), if all the relevant facts and circumstances, other than the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that intent.
(9) For the purposes of this section, an action taken by -
(a) the committee of management of an organization; (b) the committee of management of a branch of an organization;
(c) an officer, employee or agent of an organization;
(d) a group of members of an organization; or
(e) a member of an organization who performs the function of dealing with an employer on behalf of himself and other members of the organization, shall be deemed to have been taken by the organization."
The effect of the issue of a certificate under this section is also dealt with by s.47(3) of the Act. By sub-s(1) of s.47 the Commission is empowered to grant preference to organizations or members of organizations, and by sub-s (3) it is provided as follows:
"Where the Commission has, under sub-section (1), directed, by an award or order, that preference shall be given to members of an organization of employees, an employer bound by the award or order is not required, by reason of the award or order, to give preference to members of the organization over a person in respect of whom there is in force a certificate issued under section 144A." (at p262)

3. Sub-sections (5) and (6) of s. 144A, and sub-s (3) of s. 47, of course operate only in relation to a person to whom a certificate has been issued under s. 144A (1), i.e. to a person who has satisfied the Registrar that his conscientious beliefs (whether religious or not) do not allow him to be a member "of any association of a kind described in a paragraph of sub-section (1) of section 132". Paragraph (a) of s. 132 (1) describes an association of employers and par.(b) and (c) describe associations of employees. It was held by the Federal Court of Australia in Re Aper (1978) 35 FLR 388;21 ALR 407 that the conscientious belief required by s. 144A (1) is a belief which would not allow the person concerned to join any association of a kind described in s. 132 (1), and further that the belief extends to associations which are unregistered as well as to those which are registered. With all respect, it would seem an absurd result that an employee, who sought a certificate which if granted would protect him from consequences that might otherwise have flowed from the fact that he was not a member of an organization of employees, should be required to prove that his conscientious beliefs did not allow him to join an association of employers, and a construction which leads to that result seems to give too little weight to the words "in a paragraph of" in s. 144A (1). The words of s. 144A (1) are by no means happily chosen but they suggest that it would be enough if the applicant for a certificate satisfied the Registrar that his conscientious beliefs did not allow him to be a member of an association of employees of a kind described in s. 132 (1) (b) or s. 132 (1) (c). On the other hand, I respectfully agree that the word "association" in s. 144A (1) includes unregistered associations. Nevertheless, the effect of the certificate is described by reference only to organizations, that is organizations registered under the Act (see the definition in s. 4 (1)) and not to unregistered associations, and the fact that the holder of a certificate is not a member of an unregistered association is completely irrelevant to the operation of the section. The purpose of the certificate is to protect the holder from suffering adverse consequences in his employment, actual or potential, by reason of the fact that he is not a member of a registered organization. An employer bound by an award or order which directs that preference be given to members of an organization is nevertheless not required to give preference to such members over the holder of a current certificate: s. 47 (3) An employer may not dismiss an employee, or injure him in his employment, or alter his position to his prejudice by reason of the circumstance that the employee, being the holder of a current certificate, is not a member of an organization, and may not threaten to do any of those things with intent to coerce such an employee to join an organization, and may not refuse to employ a person who holds a current certificate because that person is not a member of an organization: s. 144A (5). Corresponding prohibitions are directed to the organization itself by s. 144A (6). (at p264)

4. The argument advanced on behalf of the prosecutor was that s. 144A is not a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, within the meaning of s. 51 (xxxv.) of the Constitution, or a law with respect to a matter incidental to the execution of the power vested by s. 51 (xxxv.) in the Parliament, within s. 51 (xxxix.). It was said that s. 144A (5) regulates directly the relationship of employer and employee, and if the provision does no more than that the prosecutor's argument must succeed, for it is established that the powers of the Parliament do not enable it to enact general legislation with respect to industrial relations. (at p264)

5. The prosecutor could not, and did not, see, to dispute that "it is now an accepted constitutional principle that associations 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": Federated Ironworkers' Association of Australia v. The Commonwealth (1951) 84 CLR 265, at p 280 or that the Parliament has power to regulate the affairs of industrial organizations whose creation it has authorized: Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462, at p 466 . However, although s. 144A (6) may be held to be a valid law for the regulation of the activities of an organization registered under the Act, s. 144A (5) is not directed to the control or regulation of any organization; it restricts the power of an employer to act to the detriment of an employee or person seeking employment. The power of the Parliament to permit the creation of organizations must extend to enable the Parliament to legislate for the protection of any such organization, so that it may fulfil without unreasonable impediment the purpose which it was created to serve. There is therefore no reason to doubt the validity of a provision, such as s. 5(1)(a) of the Act, which forbids an employer to dismiss an employee because he is a member of a union; such a provision is (to use the words of Isaacs J. in his dissenting judgment in Pearce v. W. D. Peacock &Co. Ltd. (1917) 23 CLR 199, at p 205 , which were cited in General Motors-Holden's Pty. Ltd. v. Bowling (1976) 51 ALJR 235, at p 240 "designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted": see also Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at p 362 . The learned Solicitor-General submitted that s. 144A (5) is designed to preserve the representative character of organizations by assisting persons who for reasons of conscience feel unable to join them to remain outside them. The role of an organization is to represent a group or class of employees or employers, and if persons are made to join an organization when they have a conscientious objection to doing so, their presence might disrupt the activities of the organization or detract from its ability to represent the relevant group or class. Learned counsel for the prosecutor submitted that the sub-section protects the individual who holds the conscientious beliefs rather than the organization, and that its true character is that of a provision aimed at maintaining freedom of conscience. However, there is no reason why a statutory provision should not have two aims, and if s. 144A (5) has the character of a provision which is designed to enable an organization to fulfil its industrial purpose, it is nevertheless valid because it also protects freedom of conscience, notwithstanding that legislation for the latter purpose in itself would be beyond the power of the Parliament. (at p265)

6. The power which is conferred upon the Parliament by s. 51 (xxxv.) to create organizations which will provide the necessary representation of groups or classes of men for the purpose of conciliation and arbitration for the prevention and settlement of industrial disputes must necessarily enable the Parliament to define the membership of those organizations. It would be absurd to suppose that the Parliament can do no more than create an organization, leaving undefined its membership, powers, functions and obligations. Thus the Parliament can declare what persons shall be entitled to join an organization, and may exclude, as it has done, persons of general bad character (see s. 144 (1)) or persons not included in a category of persons who are eligible for membership under the rules of the organization (see s. 144 (2)). Equally, it can provide that persons shall not be compelled to join an organization, whether the compulsion be by force of law or by practical pressures, and can ensure that persons who are not obliged to join an organization and do not do so do not for that reason suffer discrimination or detriment in their employment designed to coerce them into doing something which they are not legally bound to do. Of course these general statements must be qualified by saying that in each case the ultimate test of validity is to be found in s. 51 (xxxv.). However, the present is a clear case. While I do not dissent from the argument of the Solicitor-General that s. 144A (5) is valid as a provision designed to ensure that an organization is not impeded in fulfilling its industrial purpose by reason of the fact that included in its membership are persons who ought not appropriately be members, I would uphold the validity of the provision on the somewhat broader ground that the Parliament, in creating a new entity for the purpose of s. 51 (xxxv.), can provide that persons who in the opinion of the Parliament should not be compelled to become members of the new body should not suffer detriment in relation to their employment if they fail to join it. Such a provision is closely connected with the very act of creation of the organization, and prevents the exercise by the Parliament of its power from having consequences which were not intended and which do not in any way conduce to the ends indicated by s. 51 (xxxv.). (at p266)

7. For these reasons I consider that the relevant provisions of s. 144A are valid and that the order nisi should be discharged. (at p266)

STEPHEN J. This case turns upon a short point, the proper light in which to view s. 144A (5) of the Conciliation and Arbitration Act 1904, as amended. The sub-section forbids employers from acting or threatening to act in various ways industrially prejudicial to employees or would-be employees because they are not unionists, and from coercing them to join a union. It applies in aid of those who hold certificates of conscientious objection to union membership granted under s. 144A. Such a provision is, clearly enough, a law safeguarding the employment opportunities of those whose conscientious beliefs do not allow them to be union members. In that sense it protects liberty of conscience, a valuable human right. The question is whether at the same time it is also a law with respect to the prevention and settlement of industrial disputes by conciliation and arbitration or is incidental thereto. If it is, it will be valid under s. 51 (xxxv.) of the Constitution. If it is exclusively a law protecting a human right its validity could only be supported by reference to s. 51 (xxix.) of the Constitution; however there has in this case been no attempt to support validity upon that ground. (at p267)

2. The fact that s. 144A (5) provides valuable safeguards to those of tender conscience will be no disqualification from constitutional validity so long as it is otherwise within or incidental to the conciliation and arbitration power. The effect of the sub-section, read in the context of s. 144A as a whole, is to remove those economic sanctions whose impact or threatened impact might otherwise impel an existing or intending employee to join a union despite his conscientious objection to membership of any union. Its operation has been described in detail by the Federal Court of Australia in Re Aper (1978) 35 FLR 388; 21 ALR 407 . This removal of economic sanctions makes it less likely that such persons will become union members; the sub-section enables them to remain outside the union without risk to livelihood. In this feature lies what I regard as the necessary nexus between this law and s. 51 (xxxv.); it is from its protection of the representative character of trade unions that s. 144A (5) gains validity. (at p267)

3. As democratic institutions, trade unions may from time to time contain factions holding differing views on any number of questions. The faction commanding majority support will speak with the authoritative voice of the union itself. That that voice may reflect only the views of the majority of members, leaving those of a minority unspoken, is a necessary consequence of the principle of majoritarian democracy to which the Act gives effect. It in no way prejudices the truly representative quality of the union. But it will be otherwise if a union numbers amongst its members those who for reasons of conscience repudiate the very notion of membership of a union, regardless of the particular policies which it may from time to time pursue. Their presence as members will prejudice the representative character of the union. The union will possess no mandate, voluntarily given by these conscientious objectors, to speak for them. They will have been coerced into membership of, and hence representation by, an entity whose legitimacy they repudiate in a most fundamental way. The stringent test of what constitutes conscientious objection adopted in Re Aper ensures that the operation of s. 144A will be confined to those possessing genuinely held convictions of this sort. (at p267)

4. It has always been recognized that if legislation under s. 51 (xxxv.) is to have effective operation it requires the proper representation of individual workers and employers. In his notable judgment in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 358-359 O'Connor J. said:

"Any attempt to effectively prevent and settle industrial disputes by either of these means" (conciliation or arbitration) "would be idle if individual workmen and employees only could be dealt with. The application of the 'principle of collective bargaining', not long in use at the time of the passing of the Constitution, is essential to bind the body of workers in a trade and to ensure anything like permanence in the settlement. Some system was therefore essential by which the powers of the Act could be made to operate on representatives of workmen, and on bodies of workmen, instead of on individuals only. . . . the representative body must have 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.".
In Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528, at p 541 , Isaacs J. described the existence of industrial organizations as essential to improved industrial relations; Starke J. said of such an organization that, in relation to its members, it "stands in their place, and acts on their account and is a representative of the class associated together in the organization" (1925) 35 CLR, at p 551 . (at p268)

5. In Federated Ironworkers' Association of Australia v. The Commonwealth (1951) 84 CLR 265, at p 280 this Court spoke of the Act as providing "measures directed to ensuring that the officers of an organization . . . shall be elected in a manner calculated to ascertain the authentic will of the members". After citing at length from the judgment of O'Connor J. in Jumbunna (1908) 6 CLR 309 and after considering the concept of representation which the legislation involved, the Court held that "the authentic expression of the will of the members in appointing officers must be incidental to the subject matter of the constitutional power" (1951) 84 CLR 265, at p 283 . (at p268)

6. In subsequent cases, while not specifically adverting to the quality of representation which a registered organization should possess and for which Parliament may make provision as incidental to s. 51 (xxxv.), judgments in this Court have emphasized the representative character which such organizations must possess: Australian Boot Trade Employees' Federation v. The Commonwealth (1954) 90 CLR 24, at p 41 , per Dixon C.J., and Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462, at p 471 , per Wilson J. (at p269)

7. Given the need for registered organizations to be representative of their members, the provisions of s. 144A ensure that the representative nature of such organizations will not be prejudiced by the presence in their membership of those possessing "an innate conviction" that for them it is "morally wrong" to belong to any industrial organization: Re Aper (1978) 21 ALR, at p 422, 423 . The character of these organizations as representative of their members is thereby preserved. A measure which effects this is valid as incidental to the legislative power conferred by s. 51 (xxxv.). (at p269)

8. It is not irrelevant to the validity of s. 144A that its subject matter should be that of conscientious objection to union membership. In Wragg v. New South Wales (1953) 88 CLR 353, at p 386 Dixon C.J. pointed out that "A legislative power . . . with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include within laws made in pursuance of the power provisions which can only be justified as ancillary or incidental" - and see also Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55, at pp 77 . It has been accepted since Jumbunna (1908) 6 CLR 309 that unions are legitimate vehicles through which to achieve the purposes of s. 51 (xxxv.) and indeed that their existence is crucial to the functioning of a system of industrial conciliation and arbitration. A perhaps inevitable concomitant of the existence of strong and effective unions will be conscientious objection to membership of them, frequently, although not necessarily, due to the tenets of some particular religious sect. To appreciate this is the more readily to perceive s. 144A as directly ancillary and incidental to the grant of power conferred by s. 51 (xxxv.). (at p269)

9. I would discharge the order nisi. (at p269)

MASON J. This is an application to make absolute an order nisi for prohibition made by Gibbs J. directed to the respondents prohibiting them from proceeding further on the hearing of informations laid by the second-named respondent who is the Director of the Industrial Relations Bureau. The informations allege that the prosecutor has committed certain breaches of s. 144A of the Conciliation and Arbitration Act 1904 as amended. The grounds on which prohibition is sought are that -
1. The section is not a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State within the meaning of s. 51 (xxxv.) of the Constitution;
2. The section is not a law with respect to any matter incidental to the execution of the power of the Parliament to make laws with respect to conciliation and arbitration for the prevention and settlement of such disputes within s. 51 (xxxix.) of the Constitution. (at p270)

2. Section 144A deals with conscientious beliefs with respect to organizations. It provides (inter alia):
"(1) Where a person, upon application made to the Registrar in the prescribed form and manner, and payment of the prescribed fee, satisfies the Registrar that the person's conscientious beliefs do not allow the person to be a member of any association of a kind described in a paragraph of sub-section (1) of section 132, the Registrar shall issue to the person a certificate to that effect.
(2) In sub-section (1) -
'conscientious beliefs' means any conscientious beliefs, whether the grounds for the beliefs are or are not of a religious character and whether the beliefs are or are not part of the doctrine of any religion;
'prescribed fee', in relation to an applicant under sub-section (1), means a fee equal to the annual subscription payable by the members of the organization that, in the opinion of the Registrar, is the organization that would, but for the person's conscientious beliefs, have been the appropriate organization for the person to join having regard to his past employment (if any) and his future prospects of employment. (3) Notwithstanding section 88F, no appeal lies to the Commission against -
(a) a decision of the Registrar to issue a certificate under sub-section (1); or
(b) a determination by the Registrar of the prescribed fee in relation to an applicant under sub-section (1).
(4) A certificate under sub-section (1) remains in force for such period, not exceeding 12 months, as is specified in the certificate but may be renewed from time to time by the Registrar for such period, not exceeding 12 months, as the Registrar thinks fit.
(5) An employer -
(a) shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization;
(b) shall not threaten to dismiss an employee, being a person in respect of whom there is in force a certificate under sub-section (1), or to injure such an employee in his employment or to alter the position of such an employee to his prejudice, with intent to coerce the employee to join an organization; or
(c) shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization.
(6) An organization -
(a) shall not advise, encourage or incite an employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5);
(b) shall not take, or threaten to take, industrial action against an employer with the intent to coerce the employer to take action in relation to a person that would, if taken, be a contravention of sub-section (5); or
(c) shall not take, or threaten to take, any action having the effect, directly or indirectly, of prejudicing a person in his employment, being a person in respect of whom there is in force a certificate under sub-section (1), with the intent to coerce the person to join the organization." (at p271)

3. Sub-section (7) prescribed the penalty. Sub-section (8) deals with onus of proof and sub-s. (9) deems actions taken by certain groups within, or members of, an organization to have been taken by the organization itself. (at p271)

4. There were three informations in all. They dealt with action taken by the prosecutor on 21 December 1979 at Inverell in the State of New South Wales in connexion with one of its employees, Michael Mark Foley. One information charged an offence against s. 144A (5) (a) in that the prosecutor dismissed Foley by reason of the circumstance that he, being a person in respect of whom there was then a certificate under s. 144A (1), was not a member of an organization. The second information charged an offence against s. 144A (5) (b) in that the prosecutor threatened to dismiss Foley with intent to coerce Foley to join an organization. The third information charge another offence against s. 144A (5) (a) in that the prosecutor altered the position of Foley to his prejudice. (at p271)

5. The prosecutor's case is that the legislative power conferred by s. 51 (xxxv.) is to make laws with respect to the settlement of industrial disputes extending beyond the limits of one State by a specific means, namely, by conciliation and arbitration, and that it does not extend to the direct regulation of the relationship between employer and employee (Reg v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219, at p 242 .) The power does not, for example, enable Parliament to authorize the Commission to declare a common rule for industry (Australian Boot Trade Employees' Federation v. Whybrow &Co. (1910) 11 CLR 311 ; R. v. Kelly; Ex parte Victoria (1950) 81 CLR 64, at pp 79-80 ). Section 144A, in particular sub-s. (5), is not, according to the prosecutor, a law for the prevention or settlement of industrial disputes, but a direct regulation of the relationship between employer and employee. The prosecutor supports its case by reference to the manner in which the Court has dealt with the provisions of s. 47 of the Act, dealing with preference to unionists, and its predecessor s. 56. By virtue of these sections the Commission has been authorized to include in an award, when made in settlement of a dispute, provisions giving preference to unionists. (at p272)

6. In R. v. Findlay; Ex parte Victorian Chamber of Manufactures (1950) 81 CLR 537, at p 543 Latham C.J. observed: "s. 56 cannot be applied in any award where the subject matter to which the section refers is not in dispute between the parties. The Commonwealth Parliament has no general power of industrial legislation." In the same case Dixon J. said (1950) 81 CLR, at p 550 ; ". . . behind the exercise of the power conferred now by s. 56, there must be a question at issue in a two-State industrial dispute which would support an award of preference". There it was held that a demand for the exclusion from employment of persons not belonging to a given union was not an "industrial matter" within s. 4 of the Commonwealth Conciliation and Arbitration Act 1904, there being no dispute in the case to the settlement of which an award directing preference to unionists under s. 56 could be appropriate. (at p272)

7. If it be correct to describe s. 144A as a provision which merely regulates employment in industry, then the prosecutor's case would rest on solid foundations. The critical question, however, is whether the prosecutor's description of the section is an accurate one. (at p272)

8. By way of introduction to an examination of this question I note that the prosecutor fails to distinguish between a provision which merely regulates the relationship between employer and employee and one which, though it regulates that relationship, also regulates the conduct of a registered organization and strengthens its representative character. It is trite law that s. 51 (xxxv.) enables the Parliament to provide for the incorporation and registration of organizations of employers and employees as a means of facilitating the prevention and settlement of interstate industrial disputes. In providing for the registration of organizations Parliament may regulate their constitutions and their affairs - see Federated Ironworkers' Association of Australia v. The Commonwealth (1951) 84 CLR 265, at pp 277-279 ; Australian Boot Trade Employees' Federation v. The Commonwealth (1954) 90 CLR 24, at p 40 . In Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union (1980) 144 CLR 462, at p 466 Gibbs J., with whom Barwick C.J., Aickin J. and I agreed, noted Fullagar J.'s statement that Parliament can define the powers of registered organizations (Williams v. Hursey (1959) 103 CLR 30, at p 68 ) and referred to the comments made by Isaacs and Starke JJ. in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442, at pp 453,-463 that Parliament's power to regulate the affairs of registered organizations is very wide, and to the approval of these observations in Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277, at pp 288-289, 294-295, 309 . (at p273)

9. Gibbs J. went on to say (1980) 144 CLR, at p 466 :
"The power to regulate the activities of an organization registered under the Act is not limited to those activities which relate to an existing or threatened interstate dispute or to work done under an existing federal award. Such an organization is not brought into being by the Act to do whatever it wishes. It can only be created to further the purpose stated in s. 51 (XXXV.). The Parliament can validly prevent organizations formed for that purpose from engaging in activities alien to or unconnected with it. It is neither necessary nor desirable to attempt to define the limits (if any) to the power of the Parliament to regulate organizations of this kind. Clearly however the Parliament has power to prevent them from engaging in industrial activity which does not conduce to the prevention and settlement of industrial disputes by means of conciliation and arbitration." (at p273)

10. 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 activities which are or may well be detrimental to the object of the constitutional power or are immaterial to that object, whether it does so by denying capacity to the organization or by prohibiting it from engaging in certain activities. There is, for example, no reason why Parliament cannot limit the activities of an organization to activities which are directed to the prevention and settlement of interstate industrial disputes. Naturally, there are strong practical reasons founded in the nature of industrial organizations and the services which they seek to provide for their members which would deter Parliament from such an exercise of its legislative power. (at p274)

11. Viewed in this light, the provisions contained in s. 144A (6) are within power. They prohibit registered organizations from engaging in activities which would, or might, result in an employer taking any of the actions referred to in sub-s. (5). To restrain a registered organization from engaging in these activities is not inconsistent with the prevention and settlement of interstate industrial disputes by conciliation and arbitration. (at p274)

12. However, sub-s. (6) appears to be subordinate to sub-s. (5), the provision which is contested by the prosecutor. Sub-section (5) is in one sense a counterpart to the provisions of s. 5 (1) of the Act which make it an offence for an employer to dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that he is a member of a registered organization. See also s. 5 (1A) which makes it an offence for an employer to threaten to dismiss an employee, or to injure him in his employment, or to alter his position to his prejudice by reason of the circumstance that he is a member of an organization or with intent to coerce him to join in industrial action. The validity of these provisions is to be sustained as an exercise of the legislative power which will protect the organization and its members from discriminatory action. By so protecting the organization and its members the provision facilitates the role of the organization in preventing and settling interstate industrial disputes. (at p274)

13. Can a similar comment be made with accuracy of s. 144A (5)? I think so. The role of registered organizations in preventing and settling industrial disputes is likely to be impeded if, for their own protection, persons whose conscientious beliefs do not allow them to join such organizations are nevertheless constrained to join them. The presence of the conscientious objector may generate factional strife and otherwise prove to be disruptive. It is inconsistent with the accepted concept of membership of a registered organization, each member being capable of participating in the process which results in the making of decisions by the organization. It is equally obvious that a conscientious objector will feel constrained to join a union, notwithstanding his beliefs, unless he is protected against discriminatory action taken by an employer because he is not a member of an organization or because he conscientiously objects to joining such an organization. Viewed against this background, sub-s. (5) strengthens registered organizations by making it less likely that persons whose beliefs may be hostile to the functions and objects of registered organizations will become members of them and thereby weaken their representative character. (at p275)

14. Parliament does not prohibit registered organizations from admitting to membership persons who have a certificate under s. 144A (1). Nor does Parliament exclude such persons from those entitled to membership under s. 144. It would hardly make sense for Parliament to do so. The assumption is that, once the holder of a certificate is given by s. 144A (5) and (6) protection which is similar to that given to the member of a registered organization by s. 5, there is no need to prohibit the organization from admitting him to membership. (at p275)

15. True it is that s. 144A wears the appearance of a provision that safeguards the rights of persons whose conscientious beliefs do not allow them to join a union. If that were its only purpose it would fail. But as the provision conduces to the prevention and settlement of interstate industrial disputes by conciliation and arbitration by strengthening registered organizations, it is in my opinion a valid exercise of the legislative power. (at p275)

16. Section 144A (5) does not directly regulate the membership of registered organizations, as does s. 144. The holder of a certificate under s. 144A (1) is still entitled to membership, unless he is of general bad character, if he satisfies the eligibility qualifications. But the purpose and effect of s.144A (5) is to control membership by prohibiting those actions which might constrain a conscientious objector to become a member. As such it is incidental to the main purpose of s. 51 (XXXV.); the end aimed at is within power and the means adopted are appropriate. (at p275)

17. Parliament might, had it so desired, have extended the protection which it has given to conscientious objectors to a wider range of persons whose character and conduct is inimical to the attainment by registered organizations of their objects. But it is no objection to the exercise of the legislative power that Parliament has not gone as far as it might have gone. It is sufficient that it has protected from discriminatory action a limited but important class of persons who otherwise might feel impelled to become members of registered organizations with the possibility of consequences already mentioned. (at p275)

18. In the result I would discharge the order nisi. (at p275)

MURPHY J. The applicant corporation sought to prohibit a judge of the Federal Court of Australia and the Director of the Industrial Relations Bureau from proceeding with informations laid against the corporation under s. 144A (5) of the Conciliation and Arbitration Act 1904, as amended, on the ground that s. 144A (5) is unconstitutional. Although argument was directed to other sub-sections, the validity of these was not brought into question by either party and the challenge was limited to s. 144A (5). Other sub-sections, namely (6), (7), (8) and (9), affect organizations, and no organization was party to the proceedings. I emphasize this because I have grave doubt of the validity of s. 144A (9). The basis of doubt is referred to in Reg. v. Bowen; Ex parte Amalgamated Metal Workers' and Shipwright' Union (1980) 144 CLR 462 in relation to similar provisions in s. 188 (4) of the Act. (at p276)

2. Section 144A (5) is presumed to be valid, and in my opinion, the presumption has not been displaced. Apart from the presumption, there is an obvious rational connexion between s. 144A (5) and the legislative power in s. 51 paragraph (XXXV.) of the Constitution. Paragraph (xxxix.) of that section as well as paragraphs (i.), (xx.) and (xxix.) may also provide some foundation for the legislation. (at p276)

3. It has long been established that s. 51 (xxxv.) enables the Parliament to provide for the incorporation and registration of organizations of employers and employees as a direct means of facilitating the prevention and settlement of interstate industrial disputes (Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 ). Parliament may prohibit an employer from penalizing an employee or prospective employee because he was (or intended to become) a member of an organization of employees (s. 5; Pearce v. W. D. Peacock and Co. Ltd. (1917) 23 CLR 199 ). Similarly, Parliament may prohibit an employer from penalizing an employee on the ground that he was not a member of such an organization. (at p276)

4. It is open to Parliament to take the view that employers should have no influence on whether or not an employee joins an organization of employees because this would tend to detract from the voluntary and representative nature of the organizations (see ss. 2(e) (f), 132, and reg. 115). Legislation to give effect to this view would have a rational connexion with s. 51 (xxxv.) and therefore be within Parliament's powers. Section 144A (5) is simply a more limited provision protecting from discrimination those conscientious objectors to union membership in respect of whom a certificat has been issued under s. 144A (1). (at p277)

5. The fact that Parliament has itself impaired the voluntary nature of the association in an industrial organization (see ss. 144, 150) may suggest inconsistency, but this does not reduce the scope of the legislative power. (at p277)

6. Section 144A (5) is valid. The order nisi should be discharged. (at p277)

AICKIN J. In this case I have had the advantage of reading the reasons for judgment of my brother Mason. I agree with those reasons and the conclusion that the order nisi should be discharged. (at p277)

Orders

Order nisi discharged.