R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union [1980] HCA 42

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. R v Bowen; Ex parte Amalgamated Metal Workers' and Shipwrights' Union [1980] HCA 42

ORDER Order nisi for prohibition discharged. Proceedings remitted to the Federal Court of Australia with a direction that it proceed to hear and determine the matters commenced by the informations.

Cur. adv. vult.

The following written judgments were delivered:—

1980, Nov. 4 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.

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.

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.