ur Lid v . Watenide

High Court of Australia|1918-07-01|Before: Rich JJ, Gavan Duffy JJ, Per Barton J

H.C. or A. Constitutional Law - Justices of Courts created by the Commonwealth Parliament -

Appointment - Life tenure - Appointment for term of years - Commonwealth Court of Conciliation and Arbitration - Power to enforce awards - Judicial power of the Commonwealth - Validity of legistation - Severability - Power of Court of swnmary jurisdiction to enforce awards - Dhe Constitution (63 & 64 Viet. c. 12 secs. 51 (xxxv.), 71, 72 - Commonwealth Conciliation and Arbitration Act 1904 1915 (No. 13 of 1904 - No. 35 of 1915), secs. 2, 11, 12, 38, 44, 48, a

Held, by Griffith C.J. and Barton, Isaacs, Powers and Rich JJ. (Higgins an ' Gavan Duffy JJ. dissenting), that sec. 72 of the Constitution requires that e Justice of the High Court and every Justice (whether called by that or an other name) of any other Court created by the Parliament of the Common- wealth shall, subject to the power of removal contained in that section, be appointed for life.

Per Higgins and Gavan Duffy JJ.: Sec. 72 of the Constitution does no prevent the Crown or Parliament from granting a tenure for a term of y subject to removal by the Governor-General on an address of Parliament.

Held, also, by Griffith C.3. and Barton, Isaacs, Powers and Rich JJ. (Hit J. doubting), that the power conferred by the Commonwealth Conciliation Arbitration Act 1904-1915 upon the Commonwealth Court of Conciliation ané

Commonwealth" within the meaning of sec. 71 of the Constitution, and ¢ only be vested in the Courts mentioned in that section.

by see. 12 (1) of the Commonwealth Conciliation and Arbitration Act the Pre of the Commonwealth Court of Conciliation and Arbitration is to be appoint

r seven years only, that section is at variance with sec. 72 read with sec. 71 H. C. or A. 'the Constitution, and the provisions conferring upon it power to enforce 1918. 'its awards are, therefore, invalid. ww

Per Grifith C.J.: See. 12 (1) of the Commonwealth Conciliation and WokestDe

Act 1904-1915 should be read as merely requiring the Governor- FEDERATION to assign one of the Justices of the High Court to discharge the functions 597.114 President of the Commonwealth Court of Conciliation and Arbitration, v. nd, so read, is not an infringement of sec. 72 of the Constitution, and is . J- W-

lid; one of the Justices had been so assigned, and therefore his appoint- \™™XANDER

nt as President by such assignment was valid; and the President could th make awards and impose penalties.

Held, further, by Isaacs, Higgins, Powers and Rich JJ. (Griffith C.J. and J. dissenting), that the provisions in the Commonwealth Conciliation ud Arbitration Act conferring upon the Commonwealth Court of Conciliation and Arbitration power to enforce its awards are severable, and, therefore, the rest of the Act is valid.

Per Barton J.: The Court is constituted by a provision which is beyond e powers of the Parliament so as to vitiate the entire Act, the powers conferred on snch invalidly created Court being judicial and not severable,

be imposed by a Court of summary jurisdiction, notwithstanding that the wealth Court of Conciliation and Arbitration has no power to impose

STATED. the hearing before the Commonwealth Court of Conciliation

e Conciliation and Arbitration Act 1904-1915, that the hould impose a penalty on J. W. Alexander Ltd. for the of a certain award of the Court, the President stated the ving case for the opinion of the High Court : - | award of the Commonwealth Court of Conciliation and was made by the President on Ist May 1914 in an indus- e between Gilchrist, Watt and Sanderson and others, and the Waterside Workers' Federation of Australia,

summons has been issued at the instance of the Waterside ' Federation of Australia on 13th August 1918.

H.C. or A. 3. The summons alleges that a breach of the said award had

committed by J. W. Alexander Ltd., a party bound by the Warrrsipr award. The summons came on for hearing before the Cor Pil sre ake wealth Court of Conciliation and Arbitration on 23rd and

Avseaara August 1918, and was adjourned to Monday, 9th September 191 aoe for certain affidavits. Auexanper 4. Objection has been taken at the hearing of the said sun tap. on 9th September by counsel for the said party that the Co wealth Conciliation and Arbitration Act is beyond the powers of th Commonwealth Parliament inasmuch as the President is

I submit the following questions for the opinion of the Court - questions arising in the proceedings which are, in opinion, questions of law : -

(1) Is the constitution of the Commonwealth Court of ciliation and Arbitration beyond the powers of Parliament of the Commonwealth, and in particular a to (a) the arbitral provisions ; (6) the enforcing provision

(2) Is the award invalid by reason of the appointment o' President for seven years only ?

Starke, for the respondents. Sec. 71 of the Constitution confer the whole judicial power of the Commonwealth upon the Cou therein mentioned, and no other tribunal or body can exercise th power (Kilbourn v. Thompson (1); Wong Wing v. United States (2) Sec. 72 provides for the constitution of the High Court and 0 Courts created by the Parliament. Every Court referred | to sec. 71 must be constituted in the manner provided by sec. 72, a! the language of sec. 72 makes the tenure of the office of a Tustic freehold. Every Justice must hold his office for life subject on his being removed for proved misconduct or incapacity. Whater else the judicial power of the Commonwealth includes, it clea includes power to decide between parties for the purpose eith

nining their rights or of determining whether one of them has ken the law or an award which has the sanction of law. (See *s Lectures on the American Constitution, p. 313).

those propositions are true, the Commonwealth Conciliation and hitration Act 1904-1915 attempts to establish a Court of judicature hin sec. 71 of the Constitution, and that attempt fails because sec. 12 (1) the tenure of the office of President is only for years instead of for life, as required by sec. 72 of the Constitu-

. Under sec. 51 (xxxv.) of the Constitution the power to settle isputes by means of arbitration might be conferred upon a Court exercising the judicial power of the Commonwealth. There is no on why the Commonwealth Parliament should not have authority to impose upon a Court exercising judicial power the

rformance of other duties (See United States v. Ferreira (2).) 'That the Commonwealth Conciliation and Arbitration Act attempts

a Court; by sec. 11, which makes the Court a Court of record peculiarly applicable to a Court exercising judicial powers ; and

y a number of sections which confer on the Court powers which are strictly judicial, for example secs. 38 (d), (da), (e), (I), 48, 50. Sec. 31 appears to be only consistent with the Court being a Court of ture, for that section implies that but for the provisions thereof al would lie to the High Court from its decisions by force of Statute. The power given by'sec. 37 to the Court to issue an to any person to take evidence on its behalf, and the provision 'such person shall have all the powers of the Court as to summon- vitnesses, &c., indicate that the Court is intended to be a Court ature. The High Court held in Jwmbunna Coal Mine, No , v. Victorian Coal Miners' Association (3) that the Com-

Ith Court of Conciliation and Arbitration is a Court of ure from which an appeal lay to the High Court. In The Case [No. 1] (4) and The Tramways Case (No. 2] (5) the

Warersing claiming to exercise the judicial power of the Commom

eM The provision in sec. 12 of the Commonwealth Conciliation a

Pe: Arbitration Act that the President is to be "appointed" zy, smong the Justices of the High Court and is to be entitled to h

Avexanper " Office" during good behaviour for seven years, is a contravention ree of sec. 72 of the Constitution. The word "appointed" is u in the same sense as in sec. 72, and indicates an appointment to office in the ordinary sense. The section creates a new office, authorizes the Governor-General to appoint a person to that office Tf the Act is not an attempt to create a Court within sec. 71 of the Constitution and to give to that Court powers to settle disputes by conciliation and arbitration, then alternatively the Act has created a tribunal under sec. 51 (xxxv.) and has attempted to confer upon it the judicial power of the Commonwealth. To the extent

Owen Dixon. The Court constituted by the Commonu Conciliation and Arbitration Act was primarily constituted under sec. 51 (xxxv.) of the Constitution, and sec. 38 (d) and (e) and se 48, so far as they are grants of judicial power, attach to a tribunal created under sec. 51 (xxxv.) for the primary purpose of settling disputes by conciliation and arbitration. Under sec. 51 (xxx¥. which may be used in conjunction with sec. 71 of the Constitution, it is perfectly proper to create a Court, and to arm that Court the powers incidental to the performance of its purpose of se disputes. The tribunal so set up is, so far as the machinery provi and the powers conferred on it are concerned, capable of perfon either or both of the functions of creating duties and enforcing th

of disputes is shown by sec. 2, which does not mention among chief objects of the Act the enforcing of awards made by the Cout and by the great bulk of the provisions of the Act. To the powe for settling disputes certain powers admittedly judicial are a upon the assumption that the Court which was created was Court to which judicial powers could be given without con

with sec. 72 of the Constitution. There is no such conflict, because sec. 72 admits of an appointment of a Justice for a term of years.

_ That section has nothing to do with the length of tenure, but only _ provides that when the tenure is created it shall not be terminated except in the specified manner. It is a limitation upon the power _ of the Parliament, and not the creation of a power in the Governor- | F General or the Parliament. The language of sec. 72 is not the usual language used in creating a life tenure. (See Act of Settlement, 12 & 13 Will. IIL. . 3, sec. 3; British North America Act 1867, sec. 99.) Unless there can be a tenure for a term of years the Parliament cannot create temporary. Courts, and if it creates magistrates they must be given life tenures. The word "removed" means putting an end to the tenure before it would otherwise expire, and is not inconsistent with a tenure fora term of years. (See secs. 67 and 103 of the Constitution.) If sec. 72 of the Constitution does require an appointment for life, the powers conferred by sec. 38 (d) and (e) and sec, 48 of the Commonwealth Conciliation and Arbitration Act, which are judicial powers, could not be conferred upon the Commonwealth Court of Conciliation and Arbitration as constituted, and they are invalid. But they are severable from the rest of the Act. All the other provisions of the Act deal with powers for bringing into exist-

'ence legal rights and obligations, while the judicial powers are

for enforcing legal rights already in existence. The former are _ arbitral powers, and are in a sense legislative. The arbitral powers

are distinct from the judicial powers. The main object of the Act _ was to create a tribunal with arbitral powers, and the judicial powers _ are subordinate and in no way an essential part of the scheme. wards can be enforced under sec. 44 (1) by Courts of summary _ jurisdiction. The words " penalties which the Court has power to impose" are used merely as a short description of the penalties 4 mentioned in sec, 38; and if the Commonwealth Court of Concilia- _ tion and Arbitration has not the power to impose penalties, that pe coee not preclude Courts of summary jurisdiction from having the power. As to the argument that the making of the Commonwealth _ Court of Conciliation and Arbitration a Court of record shows that _ the intention was primarily to create a Court of judicature, to make

_ ita Court of record was an apt way of giving the tribunal created

under sec. 51 (xxxv.) of the Constitution power to enforce the duties -

and rights arising from the exercise of its arbitral functions. (See Kemp v. Neville (1); Grenville v. College of Physicians (2). )

Wergall K.C. (with him Mann), for the Commonwealth inter- vening. This Court will not, except in the last resort, declare an Act of the Commonwealth Parliament to be ultra vires, and if there is an ambiguity in one of the provisions of the Constitution and one interpretation will uphold the validity of the Statute and the other

will destroy it, the Court will lean to the former interpretation, -

The opening words of sec. 72 of the Constitution should be inter- preted as meaning " The Justices of the High Court and such other persons not being Justices of the High Court who are Justices of the other Courts created by the Parliament." The section does not contemplate a Justice of the High Court being also a Justice of another Court created by the Parliament. In that view the pro- vision for the appointment of a person who is already a Justice of the High Court to be President of the Commonwealth Court of Conciliation and Arbitration is not affected by sec. 72 of the Con- stitution. The word " appointed " in sec, 72 means " designated "

the Justices are to be " instituted in their office " by the Goyernor- General. The word has no reference to the tenure of the office of Justice, and does not imply a tenure for life. That is shown by sec. 103, where the word " appointed " is used in reference to a tenure for years. That the intention was to allow an appointment of a Justice of the High Court for a term of years is as probable as that it was to insist that the Justices of every Court created by the Parliament, including magistrates, should be appointed for life. The word "Justices" in sec. 72 does not include every person who presides over a Court created by the Parliament. those Courts who are not "Justices." (See Stroud's Judicial Dictionary, 2nd ed., vol. 1., p. 424.) The person who presided over a Court Martial, for instance, would not be a "' Justice." So the President of the Commonwealth Court of Conciliation, and Arbitra- tion is not a " Justice " within the meaning of sec. 72.

' Starke, in reply, referred to Willoughby's Constitutional Law H.C. or A.

ease is: "Is the constitution of the Commonwealth Court of Conciliation and Arbitration beyond the powers of the Common- _ wealth, and in particular as to (a) the arbitral provisions ; (b) the 7 enforcing provisions?" 1 will say a word later as to the meaning "of this language. _ The suggested want of jurisdiction arises from the tenure of office of the President of the Court, which I will call the Arbitration Court. This, it is suggested, is inconsistent with the provisions of the Constitution. Sec. 71 of that instrument declares that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction." This does not purport to be in itself a power, although it assumes the existence of a power to create new Federal Courts and to invest existing State Courts with Federal _ jurisdiction, The power itself is found elsewhere in the Constitution. But any attempt in the execution of that power to vest judicial Power in any tribunal that is not such a Court is ineffectual. The judicial power is a well known attribute of sovereignty. "This Court has not hitherto been called upon to make a critical examination of its nature. The provision of sec. 71 is, indeed, novel in the Empire, since the powers of other British legislatures are not limited by any such -Testrictions. It is, however, well known in the United States » America. Any inconvenience which may follow from giving effect to the express provisions of the Constitution cannot be con- sidered in determining their meaning. _ A few words on the source and nature of the power may not be out of place.

Grirritu C.J. The first question submitted to the Court in this au

H.C.or A. As soon as man emerged from the savage state and formed 1918. settled communities, the necessity became apparent of rules to. Warersipx regulate conduct. It also became necessary to make provision

Ad oe nanoy for their enforcement, and for the settlement of private controversies

wouemten between individuals. In each case the right to do so was assumed oa by the community at large, and vested in-some person or authority v

Atexanper Tepresenting that community. Hence arose lawgivers and Judges. eee And as civilization advanced, and persons came to discatint Grifith C.J. between the diverse functions of the community, these functions . were called " the judicial power" as distinguished from the legis- lative and executive powers.

The distinction is emphasised in the Constitution in sec. 71 already cited. It is impossible under the Constitution to confer such functions upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short. any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective.

The Constitution also provides (sec. 72) that Justices of the High Court and of the other Courts created by the Parliament shall be appointed by the Governor-General in Council, and shall not be removed except by the same authority on address from both Houses - of Parliament praying for such removal on specified grounds. These words, which apply to all Federal Courts alike, have always been assumed, and I think rightly, to mean that the tenure of all Federal Judges shall be for life, subject to the power of removal.

Without attempting an exhaustive definition of the term " judicial _ power," it may be said that it includes the power to compel the : appearance of persons before the tribunal in which it is vested, to i adjudicate between adverse parties as to legal claims, rights, and : obligations, whatever their origin, and to order right to be done in the matter. ;

It is suggested that a right must have an origin independent - of its enforcement. This is mainly a matter of words, but logically _ : J think it must be so. In my opinion, a law which allows a right to : be claimed and at the same time to be declared and ordered to have _ :

effect is, in any view, conclusive as to the existence of the right from the moment of declaration. It must therefore be prior, if only momentarily, to the exercise of the judicial power in respect of it, whether the declaration itself be (as I think it is) or be not a judicial act. The judicial function begins not later than that moment.

The basis of industrial arbitration, so called, is the recognition of the doctrine that employers and workers engaged in an industry have mutual rights and obligations. These rights and obligations must either be incidental to the membership of a civilised com- munity, or based upon positive law. Whether the obligation is regarded as (a) created by the Statute, or (b) - which I think the better view - implied by the Statute which authorizes its declaration and enforcement, or (c) imposed for the first time by the tribunal appointed to declare and give effect to the claims, such giving effect by declaration and order is equally a matter which falls within any possible meaning of the term " judicial power."

'The creation of a new legal right of general obligation appears to me to be a matter for legislation. In the case of an award, however, between disputants, the order is not legislative, for it does not lay down any such rule but merely deals with a particular case.

It has been contended that the power of the President of the Arbitration Court as to the mutual obligations of employers and workmen is autocratic, not founded upon any known principles of law, and limited only by his own will, which, when declared, becomes, like the Roman lady's, the law of the land. I do not accept this view, but it does not affect the question of the nature of his subse- quent functions,

For, in any view, the duties which are to be declared by a tribunal consequent upon a legal obligation are matters for the exercise of judicial power. For myself, I cannot understand the creation of a tribunal except for declaring and giving effect to some right existing at the time of such declaration and giving effect. If, however, the only powers conferred upon a so-called tribunal are in the nature of calculation, or the mere ascertainment of some physical fact or facts, and not the declaration of or giving effect to a controverted matter of legal right, it may be that they do not appertain, except

incidentally, to the judicial power. It is not disputed that con- victions for offences and the imposition of penalties and punishments are matters appertaining exclusively to that power. The duties and obligations which may be declared and ordered by an industrial _ tribunal to be performed in virtue of the rule of conduct, however originating, of which it enjoins the performance, are precisely similar in kind, and are not less onerous in effect.

Tt is hardly necessary to point out that the question whether - any specific function does or does not appertain to the judicial power depends upon its nature, and not upon the name by which the authority which exercises it is designated in a Statute, or upon what it is called in argument. The exercise of a function which is in its nature judicial may by agreement between parties be delegated

to a specific person, commonly called an arbitrator : but the obliga- tion to obey the directions which a person so designated may give, is, by our law, conventional ; that is, it is attributed to the agreement and not to the nature of the function.

The Parliament, basing its action, as I have said, upon the principle of mutual obligation, which it either enacts or (as I think) treats as already recognized by law, provides (sec. 11) that " there shall be a Commonwealth Court of Conciliation and Arbitration, which shall be a Court of record, and shall consist of a President." The jurisdiction of the Court is carefully and fully defined. It has cognizance (sec. 19), for purposes of prevention or settlement, of (inter alia) all industrial disputes properly submitted to it by plaint. It has power (sec. 24) to determine the dispute by what is called an award, which is to be in force for a period not exceeding five years (sec. 28), and may impose obligations of the most onerous character on either party. In particular the Court has power (sec. 38) to make any order or give any direction in pursuance of the hearing or determination (sec. 38 (b)), to fix maximum penalties (38 (c)) for any breach or non-observance of an order or award, and to impose _ penalties up to such maximum (sec. 38 (d)), to order compliance with any order or award (38 (da)), to grant mandamuses and injunctions against committing or continuing a contravention of the Act (sec. 38 (e)), and in several other respects to exercise the ordinary powers

The Court was thus invested, wno flatu, with ample and complete jurisdiction to declare and enforce the mutual obligations of the parties.

The exercise of the power to impose penalties is admittedly an exercise of the judicial power. If the Court has no such power the provision is, of course, of no effect. Any penalties which the Court may itself impose, but no others, may be imposed by State Magis- trates' Courts (sec. 44).

It follows that if the Court itself has no power to impose penalties the power is non-existent, and the attempt to confer this non- existent power by reference must fall with it.

Moreover, sec. 31 provides that no award or order of the Court shall be appealed against. Every appeal is the creature of Statute. Under sec. 73 of the Constitution an appeal lies to the High Court from every Federal Court with such exceptions as the Parliament prescribes. If the Arbitration Court is, as it is called by the Parlia- ment, a Court, it is a Federal Court, and the provision of sec. 31 is necessary to deny the right of appeal which would otherwise exist. If it is not, the provision is superfluous.

But, if any doubt could exist whether the office of President of the Arbitration Court is a judicial office, it seems to be removed by sec. 8 of the Judiciary Act, which enacts that a Justice of the High Court (which the President is and must be) shall not be capable of holding any other office within the Commonwealth, except a judicial office conferred on him by a law of the Commonwealth. The fact that the office of President of the Court created by the Arbitration Act was required by the same Act which declares that

Court to be a Court to be exercised by such a Justice shows in the

plainest manner that the intention of the Parliament was to confer such an office as could lawfully be conferred upon him, that is to say, a judicial office, and that his functions were to be judicial.

Thave already pointed out that many, if not all, of these functions are matters appertaining to the judicial power, and that authority

to deal with them cannot therefore be committed to any tribunal

but a Court. If the Arbitration Court is not such a Court, it cannot impose penalties at all, and, as I have said, the authority of the

WATERSIDE Workers' FEDERATION or AUSTRALIAJv ALEXANDER Lr.

Magistrates' Courts, being coextensive, falls with it, so that the whol Act is, so far, futile. x It might be inferred, indeed, that the Parliament in conferring powers that can only be exercised by a Court intended that the tribunal upon which they were conferred should be a Court. Butin this case there is no need, nor indeed room, for inference, since the 3 Parliament has said expressly (sec. 11) that it was establishing Court of record. In answer to this reasoning it is said that the : functions of the Court, or most of them, are " arbitral," whatever . that may mean, and not " judicial." This argument is based upon the assumption that the term "judicial power" and the term - "arbitral power," used as a counter for the purposes of this case, are mutually exclusive, so that if one term is properly applied to any function the other is necessarily denied. This is an obvious fallacy, The law cannot in any case be altered by the use of a new epithet, or by applying a new meaning to an old one. The question is whether the specific functions, or some of them, do or do not appertain to the judicial power, not whether they, or some of them, may with propriety, alio intwitu, be called " arbitral." The epithet " arbitral," which is used as if its use were on some points conclusive, is not a term of art. As used in the English language it merely expresses the idea of an authoritative decision between adverse parties, irrespective of the person who makes it. Such a decision is neces- sarily given on every occasion of the exercise of the judicial power, including the assessment of value or damages by a jury (which is : clearly a judicial act), or by an arbitrator properly and ordinarily E so called. The epithet, in short, qualifies the nature of the decision, and is only inferentially or by relation applied to the person who gives it. When a tribunal, by whatever name it is known, is only required to decide quantitative questions, such as questions of amount or '

value, or in some cases, questions of physical fact, the term "arbitral " may with propriety be applied to it. But whenever the - tribunal is required to decide questions of conduct, whether under - existing law or under its own decree, its functions are, to that extent at least, judicial. As to their being legislative, I have already - pointed out that they are of particular and not of general applica- _ tion. Whether the epithet " arbitral " may or may not be properly

to every tribunal in another and larger sense is a different 1

y meaning to an old word, or by using ambiguous terms in argu- 4

the Parliament thought and intended it to be, a Court created

It follows that the judicial officers of the Court must hold office

during good behaviour, and that an appointment for a less period

What, then, is the tenure of office of the President? The language sec. 12 is as follows: '' The President shall be appointed by the Governor-General from among the Justices of the High Court. He shall be entitled to hold office during good behaviour for seven _ The language demands careful examination. It says nothing in express terms about the tenure, eo nomine, of the President's office,

but it provides that he shall be appointed "from among the Jus- s of the High Court," that is, that he shall be a person who ly as a Justice of the High Court holds judicial office during

a period of seven years. The word " appoint," which in modern is often used to designate an executive act by which an office, or new, is conferred upon a person, is not in law confined to that i In the common phrase " direct limit and appoint " it is onymous with " direct " or " assign," and in earlier English legal

ge it was often used in that sense. It is also used in the sense

'he word does not of itself import any particular duration or tenure of office. Whenever used, its meaning may, and indeed must, 2 controlled by the subject matter and the context. If the ject matter is an office in the ordinary service of the State ation connoted is during pleasure. If it is a Federal judicial the tenure connoted is during the life of the officer, subject

jut, as I have said, the meaning of a Statute cannot be altered, WarersrpE Workers'

character of the functions of a tribunal affected, by giving Frpzzation

For these reasons I am of opinion that the Arbitration Court is, Arexanper

H.C. or A. again to the context. Thus, in sec. 72 of the Constitution

Og power to appoint is a power to appoint for life. In sec. 103 w. penony: power to appoint is a power to appoint for seven years. In see, WorkERS' 19 of the Arbitration Act the word is used in a new and um

or ' , . E 'Avsemarra Context. The person to be appointed has already a life tenure

eu of the qualifying office of Justice. No additional remunerati Arpxanper is conferred upon him, and there is nothing in the words used

a suggest that any new or additional personal right or advantage is Grimith C5. to be given him. On the contrary, the suggested words of limit

tion are words of additional privilege, and he is not bound, but "entitled," at his own will to discharge the duties of President te seven years. The only sanction for the obligation to discharge the duties of a Federal judicial office is that contained in the power : of removal. I do not find any violation of the law as to tenure of office or of that provision in sec. 12 of the Arbitration Act. I am therefore of opinion that the word " appointed " must in its - actual context be read as meaning " assigned," and the provision - must, in accordance with what I conceive to be the manifest intention j of the Parliament, be construed as the imposition of a new judicial duty, although of imperfect obligation, upon a person who already ; holds a permanent judicial office under the Constitution. Such a provision is not unfamiliar to English jurisprudence, and has never been considered inconsistent with the Act of Settlement. It is not necessary for this conclusion that the view which 1 adopt should be the only possible one. It is sufficient that it should be open upon the Statute. There is no doubt that it is in accordance with the intentions of the Parliament. In my judgment, the enactment may, without doing violence its language, be read as merely requiring the Governor-General to assign one of the Justices of the High Court to discharge the functions of President. The succeeding words do not offer any serious difficulty. I do not think that this Court can, consistently with its previo! decisions or with common sense, dissect the Arbitration Act, a hold, contrary to the plain intention of Parliament, that the Pr - dent, a single person, is validly appointed for some of its purposes

and not appointed for the others. In my opinion, his appointm'

iy 'if bad in part is bad altogether. To hold otherwise is to make,

not to declare, the law, and to declare a very different law from that enacted by the Parliament. _ I presume that the word "arbitral" is used in question 1 in the "sense of "non-judicial." I frankly admit my inability to make any 'intelligible distinction from this point of view between the different provisions of the Act. The question must therefore be answered asa single and indivisible one, either " Yes," or " No," i I therefore answer the first question wholly in the negative. To the second, which is "Is the award invalid by reason of the eye ntmnenit of the President for seven years only?" I answer: Tt is not invalid by reason of the manner of the appointment of the 'ident.

To the third question I answer: The award is enforceable by the

If, however, my view as to the tenure of office of the President

wrong, I answer all the questions in the opposite sense.

Barron J. This is a case stated by my brother Higgins as resident of the Commonwealth Court of Conciliation and Arbitra- During the hearing of an industrial dispute under the Arbitra- on Act between the Waterside Workers' Federation and the firm of J. W. Alexander Ltd. the following questions arose, on which the President requires the opinion of this Court as questions of

- (1) Is the constitution of the Commonwealth Court of tion and Arbitratioh beyond the powers of the Parliament the Commonwealth, and in particular as to (a) the arbitral sions ; (b) the enforcing provisions? (2) Is the award invalid son of the appointment of the President for seven years only ? s the award enforceable by the said Court ? "

_ The contention of the respondent is that the Act is invalid and H ative, because the tribunal which it erects is a Court created the Federal Parliament within the meaning of the judicature ions (secs. 71 and 72) of the Constitution, and that the head Court, the President, is appointed to his office in a manner in violation of the requirements of sec. 72. It is urged

t part of the judicial power of the Commonwealth is vested in VOL, XXv, 31

H.C. or A. the Arbitration Court as such created Court within the meaning of

Le sec. 71, and therefore that the President is the " Justice " of that. Warersron Court, and should hold his office on the terms ordained by sec, 72 WORKERS' that he "shall not be removed except by the Governor-General

QP in Council, on an address from both Houses of the Parliament in AveraAtA

a. W. Aupxanper misbehaviour or incapacity." As a matter of fact he is appointed

ip. President on the terms of sec. 12 (1) of the Arbitration Act, which Barton J. reads thus : - "' The President shall be appointed by the Governor General"? (which means the Governor-General in Council) "from among the Justices of the High Court. He shall be entitled to hold office during good behaviour for seven years, and shall be eligible for_ reappointment, and shall not be liable to removal except on 3 addresses to the Governor-General from both Houses of the Parlia- ment during one session thereof praying for his removal on the ground of proved misbehaviour or incapacity."

It should be noted that by sec. 13 the President is to be pai no other salary in respect of his services under the Act than his salary as Justice of the High Court.

The first matter to be considered is whether the name of " Court," which is used throughout the Act, is correctly applied - that

the same session, praying for such removal on the ground of proved

xxxv., of the Constitution, and is therefore not one of the Cor designated as such by the Constitution 'in the sections referred to Outside these sections the Constitution gives no authority to alloca any of the judicial power to other tribunals than those menti in sec. 71. If in the execution of its authority under sec. 51, sub-s xxxv., the Parliament creates a tribunal having judicial power, sub-section does not take the tribunal out of the category of F Courts created by the Parliament.

Has, then, the Arbitration Court any of the judicial power of Commonwealth? If that question is answered in the affirmat its head must be a person appointed as sec. 72 requires. I inquire what the answer to that question ought to be.

The lectures on the Constitution of the United States deli

. Justice Miller, of the Supreme Court of the United States, } the law students of the National University at Washington, in and 1890, include one on " the judicial power." After examin- the nature of " judicial power" he gives it the following defini- (p. 314) : " It is the power of a Court to decide and pronounce a ment and carry it into effect between persons and parties who a case before it for decision." I respectfully adopt these . They were written of judicial power in the United States, ut they are equally true of the same power in this Commonwealth. Osborn vy. Bank of the United States (1) the Court in its judgment : "Judicial power is never exercised for the purpose of giving ect to the will of the Judge ; always for the purpose of giving effect the will of the Legislature ; or, in other words, to the will of the »

It is important to observe that the judicial power includes with decision and the pronouncement of judgment the power to that judgment into effect between the contending parties. er the power of enforcement is essential to be conferred or when it is conferred as part of the whole the judicial power is miably complete.

om the earliest times, when people have associated them- into settled communities, their interest has dictated to the adoption of rules of conduct as the alternative to anarchy the only means of securing internal peace in the pursuit of wocations. The making of such rules, by whatever term it y have been known, is the making of laws; that is, it is legislation. laws of themselves were of little force without bodies which enforce them - and authorities with power to enforce them re created. These authorities might or might not be called the tribunals might not be called Courts, and the power they exercised might or might not be called judicial power. persons were Judges, whether tribunals were Courts, and they exercised what is now called judicial power, depended ends on substance and not on mere name. Enforceable by an authority constituted by law at the suit of a party case to it for decision is in character a judicial function. (1) 9 Wheat., 738, at p. 866.

H.C. or A. "Court" as the name of a place is merely a secondary me

1918." 'The Court " is the deciding and enforcing authority, even if i Warersme under a tree, as sometimes it does in parts of the British Empire,

Workers' A ere : 4 ao Frosnanon Besides Courts of compulsory powers for the bringing

Fe them of defendants or delinquents, for deciding the matter y ev. or without assistance of juries and for enforcing the de pene per it has at all times been common for individuals or the State to hay Lr. yecourse to tribunals lacking some or all of these compulsive po Barton J. and especially lacking the power of enforcement. An i 1c

is the ordinary proceeding of arbitration. Parties differing on any subject have agreed to submit their differences to some person or persons for decision, it being also agreed that the decision shall adopted by both sides contractually. The persons invoked hay generally been called among English-speaking people arbitrator and umpires, and their conclusions awards. Such proceedi being without compulsive force in any stage, were, of course, instances of the judicial power. It has been a common thin, Governments to institute bodies called Commissions, with temporary function of investigating and pronouncing on questio1 of fact for the mere information of the public, or as a founda' for executive or legislative action. There are many other ins' of the creation of bodies of varying authority, whose work is judie in the sense of bringing to bear the judicial faculty, but not jud in the sense of the exercise of power upon the parties in their on tention. In these cases of course what is known as such in

does not exist. In the present case, however, as I shall urge, is the grant of judicial power over a lis or dispute between parti from its beginning to its end. The judicial power is conferred and exercised by law and coerciy the parties have not power to agree upon the deciding authori and its decisions are made against the will of at least one sid and are enforced upon that side in invitum. An authority 0} kind is not invoked by mutual agreement, but exists to be re to by any party considering himself aggrieved, whether he be ca a claimant, a plaintiff, a petitioner, or the like. In all inst

'one person against another and grants it to him as a right against other, the legislature means by its law that that right exists, er it existed as a right declared by law before the claim, or her, on the other hand, the claim of it when substantiated is d by law asa right. If the legislature sets up a tribunal summon one side at the call of the other, to adjudicate between and to enforce its adjudication, by a determination which be in favour of either side, then the tribunal is exercising ial power, and may be a Court in the strict meaning of the It is a Court, if the legislature gives it the attributes of one, the institution down to the determination, and if necessary e enforcement. of the claim. When such intention and attributes e clear it must be also clear that the Court is granted the exercise judicial power. That power may be granted to an authority +h has other functions in addition. But the addition does not act from its character of a Court when it can exercise the power "question.

Does the tribunal created by the Arbitration Act substantially er to these tests, so as to be a Court of judicial power? That estion can be solved only by the provisions of the Act.

sec. 19 the tribunal has cognizance, for purposes of settlement

nd the limits of any one State. The disputes are in a category of several sub-sections. It is worthy of note that the category ludes disputes submitted by plaint on the part of an organization, or an assdciation registered as an organization (see interpretation ). By sec. 24, the parties may agree to settle their dispute, if a written memorandum of the terms is certified by the dent and then filed, it has the same effect as between the parties e agreement as an award, and is deemed to be such. The award, course, is the determination of the tribunal upon the dispute. agreement as to the whole of the dispute is arrived at, the is to determine it by award, and so as to any part of the not settled by the agreement. In my opinion the Act gives

it proceedings. By sec. 28 the award is to be framed in such a "as to best express the decision of the Court," and, subject

WATERSIDE Workers' Feperation oF AUSTRALIA v. J.W. ALEXANDER Lrv.

H.C. or A. to any variation which the tribunal may order, is to continue 1918.

Warersior period until a new award has been made. During that time it

force" for a specified period not exceeding five years, and after

the parties. Sec. 38 contains several matters of importance to

2 question. It specifies many powers granted to the Court as Ausrrata ' ee geo : ;

v. industrial disputes of which it has cognizance. Besides (a) the p

Auexanper "to hear and determine the dispute in manner prescribed," it he

a (d) power to impose penalties for proved breach or non-observane

Barton J. of " any term of an order or award " ; it may (da) " order compli with any term of an order or award" on proved breach or observance. It may (e) enjoin against contraventions of the Ac it may (7) order a party to the dispute to pay another party's costs expenses ; it may (/) hear and determine a dispute in the abs of a party summoned or notified to appear (a provision which bri into strong relief the compulsive force of the Act), and (i) it conduct any part of its proceedings in private. Then by sec.

And by sub-sec. 2 the penalty may be recovered by (a) the Regi or (b) any organization affected or having any member affected, (c) the member affected. By sec. 45 the Court is given power order the penalty to be paid into the Consolidated Revenue or to an organization or person specified. By the same section the

power is given to any Court of summary jurisdiction imposing such penalty. As the latter Court is a Court invested with Fed jurisdiction within the meaning of the Constitution, sec. TL, | implication that the Arbitration Court is a created Federal Cot is strengthened by this section. The implication that the tribu is intended to have judicial power is reinforced by sec. 46. I instance these sections in proof that the intention of the Le lature was that the tribunal it was creating, and which it decla to be a "Court of record," should be a Court in the full sense of body endowed with judicial power in the spheres of the recep ti

y, and the term " settlement by award " is another for an adjudication ; and the power of oe nceans is combined

It is not to the purpose to say that a power of enforcement may also be exercised in Courts of summary jurisdiction ; : those powers are given only in cases where the Court itself has to impose the penalties. The power to the minor Courts is presumably because at the time of the disregard the Federal may be sitting or otherwise doing duty at some very distant of the huge area of the Commonwealth. It is always accessible the sense of being capable of being invoked to use its power of ment. The power to other tribunals is given as an alternative ause of the inconvenience and delay which may attend an applica- to the Arbitration Court itself. But the Legislature has clearly indicated that the existence of the power in the Arbitration Court is condition precedent to the exercise of the concurrent power by other local tribunals. The complete judicial power entrusted 0 the created Court is intended to be an inseparable part of its functions, and I cannot for a moment say that an attempt to separate functions into two parts would not alter the character of the The functions which in the question are called " arbitral" those which are called '' enforcing " are collectively one set of powers in respect of a collective set of functions. Parliament does not appear to have conceived the idea of one of the two spheres of being severable from the other, so that the one without the er would constitute such a piece of legislation as it had in its d. Inother words, its intention was that the two should coexist the same tribunal as parts of one whole. In this view, Parliament, in providing by sec. 11 that the tribunal created should be a Court of record, had in mind the powers it was giving as a whole. In its al acceptation theterm " Court of record" indicates a body which as power both to make its determinations and to enforce them. turn to sec. 31 (1) the intention to create a "' Court " (the name to the tribunal throughout the Act) becomes more obvious. at the words "prohibition mandamus or injunction" sec. 31 (1) and the words "a writ of mandamus or prohibition or

in injunction " in sec. 75 (v.) of the Constitution, and looking also s

Workers" FEDERATION or AUSTRALIA wv. ALEXANDER Lrp.

at the fact that the issue of those writs is given thereby to the High Court and is not given to any other Court of the Commonwealth, it is plain that the words " other Court " in sec. 31 (1) apply to the High Court, and indicate beyond dispute that the two Courts are intended to be regarded as both of them Courts of justice of the Commonwealth, in other words that, like the High Court, though with a different jurisdiction, the Arbitration Court has a grant of judicial power. Again, take the words " appealed against " in the same sub-section of the Arbitration Act. The object of the Legis- lature was to prevent an appeal which would otherwise have lain against an award or order. We are thus driven to sec. 73 of the Constitution, which gives the High Court jurisdiction, " with such exceptions . . . as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences

(11.) of any other Federal Court," &c. There could be no appeal to be excepted by Parliament in the case of the Arbitration Court unless it were the appeal to the High Court from the Arbitra- tion Court as commg within the term "' other Federal Court." On any other reading sec. 31 (1) of the Arbitration Act would be superfluous and nugatory, and an intention to chact futilities is not to be ascribed to Parliament. It may be said that an award does not come within the term "judgments, decrees, orders, and sentences" in sec. 73. But an award is in essence an order, continuing and binding for the whole of its period. The term "order and award" in the formal awards of the Court properly

recognizes this; the more properly because the term order" is frequently used in the Act, indeed in this very section. We see this even in sec. 44, already referred to. Sec. 47 (1) expressly gives the Court another attribute, albeit in this instance a limited one, of a Court of justice. It is a power to issue process for the purpose of enforcing compliance with any " order or award."

I do not think that the conclusion can be escaped that in the Commonwealth Court of Conciliation and Arbitration the Legislature has reposed part of the judicial power as a created Federal Court within the meaning of secs. 71 and 72 of the Constitution. It has reposed that power both in the so-called " arbitral" and in the

g provisions. As to both, the granted powers are com- The defending parties are compellable to attend, witnesses are compellable to testify, the awards are judicial orders (there are few if any awards which do not order payment of specified rates of wages over a period of years, and in this connection sec. 40 (1) (b) is instructive) ; and these orders have a penal sanction.

Tam thus of opinion that the tribunal erected by the Act is a Court in the strict sense, that part of the judicial power of the Commonwealth is reposed in it, and that the Act creating it must be held to be referable to, and must be interpreted in the light of, Chapter IIL. of the Constitution.

It remains to consider whether sec. 12 of the Act and the appoint- ment of the President thereunder are within the legislative powers of the Commonwealth. If they are not so, the Constitution of the is wholly beyond the powers of the Parliament, and the award is invalid and not enforceable. Sec. 12 (1) of the Act is set out above. It is a consequence of secs. 71 and 72 of the Constitution that a person substantively appointed as President of this Court, ich is a Federal Court created by the Parliament, must hold office the terms laid down in sec. 72. If it were not required that the President should be appointed from among the Justices of the High Court, and if he were not in fact one of those Justices, it would be that the appointment would be invalid. For sub-see. 11. of section is so framed as to confer a life tenure, subject only an address from both Houses of Parliament, passed in the same on and grounded on proved misbehaviour or incapacity. Unless upon such proof and the consequent address, he "shall not be

e Words could not more clearly indicate that unless such address is adopted he is entitled to hold office so long as he lives. It was indeed argued that a tenure for any defined period, however was compatible with the provision. That view is, I think, npletely untenable. There are no words indicating power to the tenure in that manner, and, having regard to the whole e of Chapter IIT. and to the fact that an appointment during

e, subject to that condition, unless it is coupled with an express ion of tenure in point of time, I do not think that the argument

H.C. or A. necessitates extended discussion. See Harcourt v. Fox (1), judgment i

ee of Holt C.J. (2), where the appointment during good behaviour a

Bie The real argument in favour of the appointment is contained ij

or the judgment of the learned Chief Justice of this Court, and it is AUSTRALIA

that as the Pre High Court," already holds judicial office during good behaviour,

and as the word " appointed " does not necessarily mean appointed

to a substantive office, and may be read as " assigned," and more-_ over as it is not expressed that the President is to be appointed for _ any definite term, but that he shall be " entitled to hold office" for a period of seven years, the provision in sec. 12 (1) of the Arbitration Act is not in violation of the requirement of the Constitution. His Honor further points out that the meaning of the word " appoint" may, and indeed must, be controlled by the subject matter and the context. I should be glad indeed if I could agree with this construc-_ tion. The gravest consideration is due to a view expressed by so eminent a Judge, and I should be disposed to agree with it if I could, not only because it is his view but because of the seriousness of the consequences which would follow, if the view which I hold were adopted. If this Court adjudges that the terms of the appointment are not beyond the powers of the Parliament and that the appoint- ment as made by the Executive is valid, that result will be far from a disappointment to me. At the same time I am bound to form and express my opinion to the best of my ability, and without regard to consequences. In the first place I agree that the word "appointed" must be controlled by the subject matter and the context. But the subject matter must be that of the Act itself, and not merely that of the section ; and similarly as to the context. It is first relevant to consider what the word " appointed " mi as used in the Constitution, for there is no power to appoint sa in the sense which the Constitution attaches to that word. It i true that covering sec. III. uses the same word, but only in referen " to the " appointing " of a day on which the Federal Union was to b proclaimed by the Queen. So also in sec. IV. Neither of th sections has to do with appointments to offices. Coming to Chapt

(1) 1 Show., 426; 506. (2) 1 Show., at pp. 527 et seqg.

'sec. 2 provides for the representation of the Sovereign by "a H.C. or A. vernor-General appointed by the Queen." That is appointment eee

an office. Sec. 4 refers to such person as the Queen "may WarersiEe "appoint to administer the Government of the Commonwealth " ; esa are

Ft ' a = oF is to say, appoint as administrator. Sec. 5 uses the word 'Avenel

but only with reference to times. Sec. 15 again uses the word ee ppoint " with regard to a person, namely, "a person to hold the Arexanper " of a senator whose place is vacated when the Parliament of i State is not in session. In this section there is a second use Parton J.

of the word "appointed" in reference to the position of senator.

xeneral in Council, save where the appointment is delegated to some

er authority. Then we have Chapter III., relating to the Judicature. By sec. 72 the Justices of the High Court and of the reated Federal Courts are to be " appointed" by the Governor-

m in the Chapter, but it relates to the appointment of the head of such a Court as the Arbitration Court. In Chapter IV. (Finance and Trade) the word "appointed" is used twice, namely, in the

service of the Commonwealth, and in sec. 103, which (sub-sec. ;.) provides that the members of the Inter-State Commission shall be "appointed" by the Governor-General in Council. The word es not occur in Chapter V. (The States), nor does it occur in Chapter |. (New States). In Chapter VII. (Miscellaneous) it occurs once. sec. 126 the Sovereign may authorize the Governor-General to "appoint " a deputy or deputies within any part of the Common- th. It also uses the word " assign" thus: "such powers and ions of the Governor-General as he thinks fit to assign to such ity or deputies." There is also a later reference in the same on to "the appointment of such deputy or deputies." I think e mentioned all the instances of the use of the three words it," " appointed " and " appointment " in the Constitution.

Sw WATERSIDE Workers' FepeRation or AUSTRALIA v JW. ALEXANDER Lrp.

And it will be seen that, with the exception of two instances in which it refers to the fixing of a time, it refers in all cases to the conferring of offices, places, or other positions, upon persons ; and it uses the word "assign" only twice, and then with respect only to powers and functions. It is apparent that when the Constitution uses any of the three words with reference to a person, it means that the appoint- ment is substantive and distinct. Still more clearly is it so in sec, 72, and that section must be followed in conferring his office on the head of a created Federal Court.

The subject matter of the whole Act is the dealing with con- ciliation and arbitration by means of a Court. Not only is the tribunal given the attributes of a Court, but it can only be a Federal Court within the meaning of Chapter III. of the Constitution. In these respects I am at one with the learned Chief Justice. But though it is the subject matter of the Act which must control, it is none the less necessary that the appointment of the head of this Court as a created Federal Court must conform to the requirements of the judicature provisions of the Constitution. The subject matter of sec. 12 of the Act is, I submit, not enough to look at. What kind of tenure does this Court, created under the authority of the Constitution, need, as a Court so created, for its head? It needs that the head be appointed in the sense of sec. 72, and the substitution of " assigned " for "' appointed " in sec. 12 of the Act, if it could be made, does not alter that need. Indeed it may be that if the word " assigned " had been used, it would, to bring the case within the Constitution, have to be read as " appointed."

Let us turn to the context of the Act. There is the use in secs. 14 and 14a of the word to denote appointment to the office of deputy. It occurs in sec. 35 (1) in the phrase "appoint two assessors." Sec. 40a gives the Court power by award or order to "appoint" or give power to appoint a Board of Reference, and goes on to assign to the board certain functions. By sec. 51 the Governor- General may (c) "appoint an Industrial Registrar and Deputy Industrial Registrars." By sec. 82, nothing in the Act is to require any Judge of the Supreme Court of a State "to accept any

'appointment under this Act," and no such appointment is to be _ made without the approval of the State Governor.

It will be seen that throughout the Act there is no instance of the use of either of the words " appoint" or " appointment" : except in the ordinary sense in regard to the conferring of offices. _ The real criterion is the sense in which the Constitution, with and 'subject to which the Act must be read, uses the word " appointed " as applied to offices or positions. There the sense is always the same, but the point most material is that it is used in sec. 72 with

reference to the appointment of the head of a created Federal Court. As the President is evidently intended to be that head, he must be _ appointed in the sense which the Constitution requires in sec. 72, and that section requires a substantive appointment.

Without saying that by the Constitution the President must not be also a Judge of the High Court, it is necessary that he should

hold office by the tenure prescribed in sec. 72, and that whether or not he has also the functions of a Judge of the High Court, who 'cannot, in the Arbitration Court, exercise the functions of a Judge ofthe High Court. If the Act required the personages to be identical, it would not be thereby relieved of the necessity of conformity to the
Constitution. That necessity cannot be evaded by "selecting " the President from among the Justices of the High Court. I use 'the word " selecting" because his Honor has thought it may be 'equivalent to "appointing." But I have always understood that the process of selection is commonly involved as a preliminary to appointment.

_ I see no difficulty in the words " entitled to hold office." They mean that the person is at liberty to resign his office within period limited. In whatever way sec. 12 (1) may be read, it conform to the requirements of the Constitution. That is the dition which cannot be escaped. It must, I think, be conceded 0 it that it uses the word '' appointed " in the sense employed in 72. Tt may also be conceded that much of its phraseology sembles portions of sec. 72. But it cannot be conceded that the lonstitution ever intended or allowed that the head of a created t - the "Justice" of it, to use the word employed - should orm the duties attached to that office except upon the tenure

Sw WATERSIDE Workers' FEDERATION or AUSTRALIA v. J.W. ALEXANDER Lap

H. C. ov A. and under the terms prescribed by the fundamental law. That law 1918. clearly did not intend that such a judicial officer should be limited -

"~ Warersipe in his term of office to seven years. It is to be remarked that the

Bie Arbitration Act sets forth in a schedule an oath which the President

AUSTRALIA i pow To conclude, I do not separate the provisions of the Act, as Ican- Auexanper not, in reason, sever what are called the "arbitral" from the

rp. enforeing provisions, and must therefore look upon the Act as one Barton J. Jegislative fabric in its substance. So thinking, I answer the whole of question 1 in the affirmative, question 2 in the same way, and

Isaacs AnD Ricw JJ. 1. - In our opinion the Constitution of the Commonwealth Court of Conciliation and Arbitration is not beyond the powers of the Parliament of the Commonwealth so far as relates to the arbitral provisions of the Act.

The power conferred by sec. 51 (xxxv.) of the Constitution, like every other power, is complete in itself. But like every other power granted, it needs its own interpretation in order to find the nature and extent of the subject matter. PI. xxxv. does not give power in general terms to the Commonwealth Parliament to legislate with respect to industrial disputes beyond the limits of the State. The power is limited to legislation with respect to a particular method of dealing with such disputes. The method sq specified is "con-

ns ciliation and arbitration." The reason of the limitation is on the surface. Industrial disputes extending beyond the limits of any one State embrace so many possible divergencies, of industry, of conditions, of claims, of surrounding circumstances at home and abroad, and of constant changes, that direct legislation in advance - is incapable of being applied to them. No one can foresee for any appreciable period the legislative requirements of industrial peace - in any one industry, much less in all industries of the Commonwealth which are common to more than one State. Any attempt at detailed regulation, applicable to all industries even if suitable to-day - practically an impossible hypothesis, - would certainly be : less suitable a month hence. Nevertheless, it was thought necessary ' that such disputes should not go uncontrolled but that the control

ild be exercised only by means of conciliation and arbitration. is essentially different from the judicial power. Both of them for their ultimate validity and efficacy on the legislative power. Both presuppose a dispute, and a hearing or investigation, and a ion. But the essential difference is that the judicial power is ned with the ascertainment, declaration and enforcement

exist, at the moment the proceedings are instituted ; whereas function of the arbitral power in relation to industrial disputes 'is to ascertain and declare, but not enforce, what in the opinion of e arbitrator ought to be the respective rights and liabilities of the ies in relation to each other.

An industrial dispute is a claim by one of the disputants that sting relations should be altered, and by the other that the claim ould not be conceded. It is therefore a claim for new rights. d the duty of the arbitrator is to determine whether the new rights it to be conceded in whole or in part. His opinion may take y form the law provides ; it may be called an order, or an award. his declaration of opinion does not make it law. He does not te. It is always the Statute which gives the arbitrator's pinion efficacy, and stamps his decision with the character of a g | right or obligation. Parliament legislates, but is compelled

i code, and say that shall be obeyed by disputants. A par-

cular method that other Parliaments may adopt, it must adopt if it legislates at all. It can say, and has said, that an arbitrator shall power to inquire into the circumstances of each particular ute, and say what in his opinion ought to be their respective and liabilities with respect to the matters in dispute, and that n so declared those shall be their mutual rights and liabilities. a process is very common in legislation. Instances are numerous ;

refer to Powell v. Apollo Candle Co. (1), R. v. Burah (2), and, erica, to Prentis v. Atlantic Coast Line (3), Knoxville v..Knox-

(1) 10 App. Cas., 282. (3) 211 U.S., 210, at p. 226.

H.C. or A. extracted in Australian Boot Trade Employees Federation v. Why- we brow & Co. (1), where the present subject is dealt with. A later

At a glance

Court

Decision date

Before

Source

Judgment (379 paragraphs)

Parties