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Published online by Cambridge University Press: 24 January 2025
1 (1982) 56 ALJR 366; (1982) 40 ALR 609; (1982) ATPR 40-285. High Court of Australia; Gibbs CJ, Stephen, Mason, Murphy, Aickin, Wilson and Brennan JJ.
2 Hereinafter referred to as “the Act”.
3 Apart from the margin note, s 45D does not use this expression and spells out explicitly the prohibited conduct in para (1) (b) as that taken by two persons in concert in order to induce a third person not to deal with a fourth person, the last person being the real target of the conduct.
4 On the introduction of s 45D on 1 July 1977 see M Sexton, , “Trade Unions and Trade Practices” (1977) 5 Aust Bus L Rev 204Google Scholar; McCallum, R C, “Industrial Law 1977” in R Baxt (ed), Annual Survey of Law 1977 (1978) 226, 264Google Scholar; Creighton, B, “Secondary Boycotts under Attack-The Australian Experience” (1981) 44 Mod L Rev 489CrossRefGoogle Scholar. The amendment followed a brief report of a Trade Practices Review Committee headed by Mr TB Swanson, delivered on 20 August 1976.
5 A trade union registered under the Trade Union Act 1881 (NSW).
6 Remedies for breach of s 45D include proceedings by the Attorney-General to have the union fined up to $250,000 under ss 76 and 77. A person who suffers loss as a result of the conduct may seek damages under s 82; however s 45D has usually been invoked in order to restrain boycotts by injunction under s 80. The Conciliation and Arbitration Commission also has jurisdiction to conciliate a s 45D dispute under s 80AA of the Act and Division 5A of the Conciliation and Arbitration Act 1904.
7 McGregor Jin fact referred to s 45D(l) (b) (ii) in his judgment (reported (1980) 6 TPC 573) but this was treated by the High Court as a typographical error, there being no evidence to suggest a breach of sub-para (ii) rather than (i).
8 (1982) 56 ALJR 366, 368 per Gibbs CJ, 377 per Mason J. However Stephen J stated that the legislation was in excess of power where it extended to holding companies at 375.
9 (1982) 56 ALJR 366, 368; 40 ALR 609, 614.
10 (1982) 56 ALJR 366, 369, 375, 377, 386; 40 ALR 609, 615, 627, 630, 646.
11 The distinction between paras (1 ) (a) and (1) (b) seems to be that (b) requires that the target of a boycott (“the fourth person”) be a corporation whereas (a) requires that the “third person” or instrument of the boycott be a corporation. In both cases the conduct hinders the business of the corporation but para (b) requires further that that be the purpose of the conduct; under (a) it is an incidental effect of conduct aimed at the fourth (non-corporate) person. The significance of purpose to Parliament's protective power emerges quite strongly in the judgments of Gibbs CJ and Wilson J, and to a lesser extent in that of Stephen J.
12 S 45D had earlier been held valid in relation to conduct occurring in the course of interstate trade (to which it extends by s16(2) (b) of the Act) in Seamen's Union of Australia v Utah Development Co (1978) 22 ALR 291; (1978) 53 ALJR 83. There is now a wider prohibition of secondary boycotts in the course of interstate and overseas trade by sub-ss45D(1A), (1B), (1C). The Federal Court has also held that s 45D does not bind the Crown in right of a State authority, in Sharkey (F) and Co Pty Ltd v Fisher (1980) 33 ALR 173.
13 (1982) 56 ALJR 366, 369, 386; 40 ALR 609,615,646. When Fontana was decided the definition adopted was whether it was a corporation whose trading activities, at the time a Commonwealth law operates upon it, form a sufficiently significant proportion of its overall activities to merit its description as a trading corporation (Brennan J at 387; 648; R v Federal Court of Australia; ex parte Western Australian National Football League (1979) 143 CLR 190, 233; State Superannuation Board v Trade Practices Commission (1983) 57 ALJR 89 (as to financial corporations). Since Fencott v Muller (1983) 57 ALJR 317; 46 ALR 41, the activities test would not seem to be the sole criterion of character in the opinion of Mason, Murphy, Brennan and Deane JJ-if those activities are not present because the corporation is yet to begin to trade, its character may be found in its objects and constitution, for example.
14 For example Sir Isaac Isaacs stated in Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 393 “... a purely manufacturing company is not a trading corporation”. A mining corporation may not be within the description-Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278, 314 per Dixon J. See also the distinction between the concepts of trade and production maintained in regard toss 51(i) and 92-Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77-8. Perhaps a production corporation which sell its finished products on a substantial commercial basis is not a pure producer and is, in part, a trader.
15 (1971) 124 CLR 468.
16 Ibid 490; see Case Note (1972) 5 FL Rev 133.
17 R v Judges of the Australian Industrial Court; ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235.
18 In Fencott v Muller (1983) 57 ALJR 317; 46 ALR 41 the CLM Holdings decision was extended to uphold the use of the corporations power to impose civil liability upon natural persons where incidental to regulation of the activities of corporations. In the joint opinion of Mason, Murphy, Brennan and Deane JJ this is so because corporations act through natural persons and because effective regulation calls for the inlposition of duties upon those persons who participate in corporate activities.
19 (1982) 56 ALJR 366, 375; 40 ALR 609, 626.
20 Ibid 376; 627.
21 Ibid 378; 631-632.
22 Ibid 379; 633-634.
23 (1979) 143 CLR 190, 239.
24 (1982) S6 ALJR 366, 383; 40 ALR 609, 640.
25 Citing Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 79; Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1, 7, 13.
26 Hornsby Shire Council v Salmar Holdings Pty Ltd (1972) 126 CLR 52, 54, 56.
27 (1880) 15 Ch D 247, 258-259.
28 For this distinction see Halsbury's Laws of England (4th ed, Vol 16) para 501; Atiyah, P, Vicarious Liability in the Law of Torts (1967) Chs 3-8Google Scholar.
29 (1982) 56 ALJR 366, 369; 40 ALR 609, 616.
30 Ibid 370; 616.
31 As Barwick CJ had stated in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 490. Menzies J in Strickland expressly left this point open at 507-508.
32 This theory is consistent with that of Barwick CJ's in Strickland that the central area of the power is the external activities of corporations whether trading, financial or foreign, and that mere corporate personality is not in itself the core of the power. In Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 393 Isaacs J had also given considerable weight to the adjectives in para (xx) on the basis that those corporations had been selected for the Commonwealth because of their activities. In that decision however Isaacs J attempted to confine the power so as to persuade his reserved powers-minded brethren that its ambit was not as destructive of the States' rights as they feared: that fear is no longer relevant to the interpretation of the power on modem principles, it may be submitted.
33 (1947) 74 CLR 31, 79.
34 (1965) 114 CLR 1, 13.
35 (1982) 56 ALJR 366, 370; 40 ALR 609, 616.
36 Except, one might add when one considers whether a law is incidental to the exercise of a Commonwealth power; see Zines, L, The High Court and the Constitution (1981) 30-36Google Scholar.
37 (1976) 136 CLR 1.
38 (1909) 8 CLR 330, 409-410.
39 One of the dicta of the Court in the Engineers case was that feared abuse of power is no reason to qualify an express grant of power (1920) 28 CLR 129, 151.
40 Fencottv Muller (1983) 57 ALJR 317; 46 ALR41.
41 This development would not ignore the interstate and intrastate distinction of the power with respect to trade but would flow from a recognition that each s 51 head of power is independent to at least the extent that the express words of one paragraph are not to be limited by a mere implication drawn from another paragraph (Russell v Russell (1976) 134 CLR 495, 539; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468). It is no more than an implication that intrastate trade is a matter left to the States under s 51(i). Arguably traders bring themselves within Commonwealth jurisdiction by adoption of a corporate structure.
42 (1964) 113 CLR 207, 225-226.
43 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
44 See the authorities collected by Professor Zines supra n 36, 10-11.
45 (1982) 56 ALJR 366, 381; 40 ALR 609, 636.
46 Ibid 381; 637. For some “States' rights” criticism of Mason J's judgment, see Lumb, R D, “Problems of Characterization of Federal Powers in The High Court” [1982] ACLD at 45Google Scholar.
47 See Zines supra n 36, 72-73.
48 Ibid 72-75.
49 (1982) 56 ALJR 366, 386; 40 ALR 609, 645.
50 Ibid 374, 384; 627, 643.
51 Ibid 384; 642.
52 Ibid 388; 650.
53 Ibid 384; 643.
54 (1926) 39 CLR 95.
55 (1975) 132 CLR 307.
56 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 189, 222, 263; see Wynes, WA, Legislative Executive and Judicial Powers in Australia (5th ed 1976) 132-133Google Scholar; Zines, supra n 36, 190-193.
57 (1926) 39 CLR 95, 117.
58 South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373, 409; Orient Steam Navigation Co Ltd v Gleeson (1931) 44 CLR 254, 261; Burton v Honan (1952) 86 CLR 169, 179.
59 Clearly this is so but arguably the validity of s 45D(5) raised a question about the deeming of the existence of jurisdictional facts. That same question arose in Williamson, supra n 54 and Milicevic, supra n 55, from quite different provisions, of an evidentiary or onus of proof nature.
60 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77.
61 Stemp v Australian Glass Manufacturers Co Ltd (1917) 23 CLR 226, 233.
62 (1952) 86 CLR 169.
63 See the careful analysis of Fullagar J in Williams v Hursey (1959) 103 CLR 30, 81.