Owens v Commonwealth [1991] HCA 20

High Court of Australia Mason CJ Brennan, Deane, Dawson, Toohey, Gaudron and McHugh J Owens v Commonwealth [1991] HCA 20

Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ

The Court delivered a joint judgment.

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.

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 BLF case) (1986) 161 CLR 88 at 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 organisations "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 (at 95), it is "appropriate for Parliament to decide whether an organisation so selected should be subsequently excluded [from that system] and, if need be, to exclude that organisation by an exercise of legislative power". Obviously, the exclusion or continued exclusion of an unregistered organisation from eligibility for registration or re-registration, which is what is involved in the present case, was seen in the BLF case as being at least as clearly within the legislative power conferred by s 51(xxxv) as is the deregistration of an already registered organisation, which is what was involved in that case: see also, Re Coleman; Ex parte Billing (1986) 61 ALJR 37 at 40; R v Ludeke; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 63611 IR 320 at 324-325.