''Waterside Workers' Federation of Australia v J W Alexander Ltd'' is a
landmark
A landmark is a recognizable natural or artificial feature used for navigation, a feature that stands out from its near environment and is often visible from long distances.
In modern use, the term can also be applied to smaller structures or f ...
Australian
judgment
Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to decision-making, make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct u ...
of the
High Court made in 1918 regarding
judicial
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudication, adjudicates legal disputes/disagreements and interprets, defends, and app ...
power of the Commonwealth which established that
Chapter III of the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
required judges to be appointed for life to a specific court, subject only to the removal provisions in the constitution. The majority of the High Court held that because the President of the
Commonwealth Court of Conciliation and Arbitration
The Commonwealth Court of Conciliation and Arbitration was an Australian court that operated from 1904 to 1956 with jurisdiction to hear and arbitrate interstate industrial disputes, and to make awards. It also had the judicial functions of in ...
was appointed for seven years and not life as required by s 72 of the Constitution, the Arbitration Court could not exercise judicial powers of the Commonwealth.
Background
The
Waterside Workers' Federation of Australia
The Waterside Workers' Federation of Australia (WWF) was an Australian trade union that existed from 1902 to 1993. After a period of negotiations between other Australian maritime unions, it was federated in 1902 and first federally registered ...
applied to the Commonwealth Court of Conciliation and Arbitration for a penalty to be imposed on J W Alexander Ltd for the breach of an
award
An award, sometimes called a distinction, is something given to a recipient as a token of recognition of excellence in a certain field. When the token is a medal, ribbon or other item designed for wearing, it is known as a decoration.
An awar ...
.
H. B. Higgins
Henry Bournes Higgins KC (30 June 1851 – 13 January 1929) was an Australian lawyer, politician, and judge. He served on the High Court of Australia from 1906 until his death in 1929, after briefly serving as Attorney-General of Australia in ...
was appointed for life as a judge of the High Court, however his appointment as President of the Commonwealth Court of Conciliation and Arbitration was for seven years only. J W Alexander Ltd objected to the case being heard by the Court, arguing that the Court was not validly constituted because the President was not appointed for life.
Higgins referred questions for the opinion of the High Court, by way of a stated case. Two primary issues arose in the case, whether the Commonwealth Court of Conciliation and Arbitration could validly exercise (1) judicial power of the Commonwealth and (2) the arbitration powers of the Commonwealth. In the High Court
Owen Dixon
Sir Owen Dixon (28 April 1886 – 7 July 1972) was an Australian judge and diplomat who served as the sixth Chief Justice of Australia. A judge of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-s ...
represented the Waterside Workers' Federation while
Hayden Starke
Sir Hayden Erskine Starke KCMG (22 February 1871 – 14 May 1958) was an Australian judge who served on the High Court of Australia from 1920 to 1950. He was a prominent Melbourne barrister before his appointment to the court.
Early life
S ...
appeared for J W Alexander Ltd.
At the time s 72 of the Constitution provided :
The Justices of the High Court and of the other courts created by the Parliament:
(i) shall be appointed by the Governor-General in Council;
(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;
(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
The case followed shortly after the
Wheat Case where the High Court held that the seven year term mandated by s103 of the Constitution for members of the
Inter-State Commission
The Inter-State Commission, or Interstate Commission, is a defunct constitutional body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade. The ...
precluded that commission from exercising judicial powers of the Commonwealth.
Decision
The High Court was divided with the majority of judges agreeing as to the conclusions but for different reasons such that there was no
majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Not all cases have ...
and the
ratio decidendi
''Ratio decidendi'' ( Latin plural ''rationes decidendi'') is a Latin phrase meaning "the reason" or "the rationale for the decision". The ''ratio decidendi'' is "the point in a case that determines the judgement" or "the principle that the case e ...
is, in part, uncertain. The
plurality opinion
A plurality opinion is in certain legal systems the opinion from one or more judges or justices of an appellate court which provides the rationale for the disposition of an appeal when no single opinion received the support of a majority of th ...
is found in the judgments of
Isaacs Isaacs may refer to:
* The Isaacs, a bluegrass Southern gospel music group
* Isaacs (surname)
* Isaacs, Australian Capital Territory, a suburb of Canberra, Australia
* Division of Isaacs, a federal electoral division in Victoria, Australia
* Divisi ...
,
Powers and
Rich
Rich may refer to:
Common uses
* Rich, an entity possessing wealth
* Rich, an intense flavor, color, sound, texture, or feeling
** Rich (wine), a descriptor in wine tasting
Places United States
* Rich, Mississippi, an unincorporated commun ...
JJ.
The exercise of judicial power
A majority of judges,
Griffith
Griffith may refer to:
People
* Griffith (name)
* Griffith (surname)
* Griffith (given name)
Places Antarctica
* Mount Griffith, Ross Dependency
* Griffith Peak (Antarctica), Marie Byrd Land
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CJ,
Barton, Isaacs, Powers and Rich JJ, held that the power to enforce awards, being convictions for offences and the imposition of penalties and punishments, are matters appertaining exclusively to judicial power. Because the power conferred by the Commonwealth Conciliation and Arbitration Act 1904-1915
was part of the judicial power of the Commonwealth, the Commonwealth Court of Conciliation and Arbitration could only do so if the ''Arbitration Act'' complied with the requirements of a Chapter III court.
Barton, Isaacs, Powers and Rich JJ held that any judge of a Chapter III court must be appointed for life, subject only to the removal powers in section 72(ii).
The life appointment must be to the particular court, not just to a court. It followed that the appointment of the President for a term of seven years was contrary to s 72 of the Constitution.
Because the President was invalidly appointed, the Commonwealth Court of Conciliation and Arbitration could not exercise the judicial power of the Commonwealth and the provisions conferring upon it the power to enforce its awards were, therefore, invalid.
Isaacs & Rich JJ in their joint judgement held that the only power the Constitution gave the
Governor-General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
with respect to judges under Chapter III was to appoint or, in limited circumstances, remove the judge from office. The Governor-General had no power to assign judicial duties.
Griffith CJ agreed with the majority that a judge must be appointed for life, however his Honour dissented as to the conclusion, holding at p 448 that being the President of the Commonwealth Court of Conciliation and Arbitration was not a separate judicial office, as it conferred no additional remuneration nor any personal right or advantage. As such the Governor-General was assigning these judicial duties to one of the Justices of the High Court and it was not an appointment under section 72 of the Constitution.
In separate judgments Higgins and Gavan Duffy JJ dissented on the basis that s 72 of the Constitution did not require the appointment of a judge for life and that a person who ceased to be a judge on the expiration of that person's term of office was not removed by the Governor-General.
If the Commonwealth Court of Conciliation and Arbitration could not enforce the award, then who could? Isaacs, Higgins, Powers and Rich JJ held that the award could be enforced in any
Magistrates' court
A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings.
Courts
* Magistrates' court (England and Wales)
* Magistrate's Cour ...
exercising
summary jurisdiction Summary jurisdiction, in the widest sense of the phrase, in English law includes the power asserted by courts of record to deal ''brevi manu'' with contempts of court without the intervention of a jury. Probably the power was originally exercisable ...
.
The exercise of arbitration powers
The majority decision that the provisions conferring judicial power to enforce awards were invalid, raised the issue as to whether the invalidity extended to the provisions that allowed the award to be made. That is whether the invalid conferral of judicial power could be severed from the valid conferral of powers of arbitration. Isaacs, Higgins, Powers and Rich JJ held that these portions could be severed and that the rest of the Act was valid.
Barton J dissented on the basis that the intention of parliament was that the two spheres of power "should coexist in the same tribunal as parts of one whole", such that the Act was wholly beyond the powers of the Parliament and that award was invalid and not enforceable.
Griffith CJ held that the entire Act was valid and so upheld the validity of the award. His Honour however agreed with Barton J that the Act was not severable and that if the enforcement powers were invalid, as found by the majority, then the entire Act was invalid.
Significance
The effect of the decision was to uphold the validity of the award and that it was enforceable, just not in the Commonwealth Court of Conciliation and Arbitration. There was thus no immediate practical need to amend the legislation. Higgins J continued to sit as the President, exercising the arbitral powers until his resignation in 1921. He was replaced as President by Powers J.
It was not until 1926 that the Parliament passed the Commonwealth Conciliation and Arbitration Act 1926 which replaced the President with a Chief Judge who was appointed in the precise terms of s 72 of the Constitution.
While the case is still quoted in relation to the extent of the judicial power, the main significance of the decision in relation to the powers of the Commonwealth Court of Conciliation and Arbitration was subsumed by the decision in the
Boilermakers case in 1956, that no Court could exercise both judicial and arbitral powers.
The case was referred to by the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
in the second reading speech for the proposed referendum to provide for a retirement age for federal judges.
As long ago as 1918, the High Court held in Alexander's case that section 72 requires that every justice of the High Court and every justice of any other court created by the Commonwealth Parliament, and indeed every magistrate so appointed, shall, subject to the power of removal contained in that section, be appointed for life. It has, in consequence, been generally accepted that justices of the High Court, and other Federal judges including magistrates, cannot be required to retire on reaching a specified age. This is an unsatisfactory situation. There is an almost universal practice that the holders of public offices retire on attaining a maximum retirement age. The reasons for this practice are well known and they do not need to be spelt out here.
The subsequent
referendum
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
was approved by a majority of electors nationwide, and in a majority of states. The constitution now requires appointment for a term expiring on the judge's age, with the consequence that the interpretation favoured by Higgins and Gavan Duffy JJ, permitting appointment for a fixed term, is not available unless there is a further constitutional amendment.
References
{{reflist, 30em, refs=
High Court of Australia cases
Australian constitutional law
Separation of Powers in the Australian Constitution cases
1915 in case law
1915 in Australian law
Maritime history of Australia
Australian labour case law