Actors and Announcers Equity Association of Australia and Others v Fontana Films PTY LTD1
| Published date | 01 December 1983 |
| Date | 01 December 1983 |
| DOI | 10.1177/0067205X8301300404 |
| Subject Matter | Case Notes |
CASE NOTES
ACTORS AND ANNOUNCERS EQUITY ASSOCIATION
OF
AUSTRALIA AND OTHERS v FONTANA FILMS
PTY
LT1Y
Constitutional Law (Cth) -Constitution (Cth) s 51(xx) Corporations
power -constitutional validity
of
legislation prohibiting secondary boy-
cotts-
Trade Practices
Act
1974 (Cth) s 45D
Trade Practices -prohibition
of
secondary boycotts -organisation
of
employees deemed to be engaged in conduct
of
members -constitutional
validity
of
s 45D(l)(b)(i), s 45D(5) and s 45D(6) Trade Practices
Act
1974
(Cth)-
Constitution (Cth) s 51(xx)
On
11
May 1982 the Full High Court handed down its decision in Actors
and Announcers Equity v Fontana Films. All members of the Court agreed
on the constitutional validity of s
45D(
1)
(b)
(i) of the Trade Practices Act
1974 (Cth)
as
amended2 which prohibits the imposition of "secondary
boycotts"3 against corporations for the purpose and with the likely effect of
causing substantial loss or damage to the business of the corporations.
However a five-two majority of the Court held invalids
45D(5)
of the Act
with so much of sub-s (
6)
as
was consequential to the operation of sub-s
(5).
Section
45D(5)
deems an organisation of employees to have engaged
in conduct prohibited by sub-s (
1)
in concert with its employees and with
the purpose held by those employees where the organisation fails to show
that it took "all reasonable steps" to prevent two or more of its employees
from engaging in the prohibited conduct. Sub-section (
6)
renders the
organisation liable in damages to persons suffering loss by reason of the
conduct.
The decision is significant both in terms of industrial relations in Australia4
and for the reasoning of the Justices concerning one of the Commonwealth
Parliament's most important yet largely untested
powers.-s
51
(xx) of the
Constitution. The second aspect of the decision raises questions about the
validity of Commonwealth legislation which deems the existence of the very
facts upon which Commonwealth legislative power may be seen to rest.
The background to the case arose in October 1980 when Fontana Films
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".
a 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 204; R C McCallum, "Industrial Law
1977"
in
R Baxt
(ed),
Annual
Survey
of
Law
1977
(1978) 226, 264; B Creighton,
"Secondary Boycotts under
Attack-The
Australian Experience" (1981)
44
Mod L
Rev 489. The amendment followed a brief report
of
a Trade Practices Review
Committee headed by
Mr
T B Swanson, delivered
on
20 August 1976.
346
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