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 interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.

The Court was declared invalid by the High Court of Australia in the Boilermakers' case,[1] and was replaced by two bodies: the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court.

History

The Court was created in 1904 by the Commonwealth Conciliation and Arbitration Act 1904,[2] an Act of the Parliament of Australia. The Court was initially less important than the various State industrial conciliation commissions, which had jurisdiction over all disputes which occurred within their respective states. The Court's workload was so low that it made only six awards in the first five years of its existence.[3]

Amendments in 1926 reformed the Court. The changes included replacing the office of President with that of Chief Judge alongside other judges, and ensuring all cases involving the basic or living wage would be heard by a full bench of the Court. The changes also allowed for the appointment of Conciliation Commissioners, with a role similar to mediators. Further changes were made to the Court in 1947 to increase the role of the Commissioners, leaving the judges to conduct the judicial work, and a select few matters of arbitration including the basic wage and the minimum wage for women.[3]

In 1956, the High Court of Australia in the Boilermakers' case held that the Commonwealth Court of Conciliation and Arbitration, as a tribunal exercising the non-judicial power of arbitration, could not also exercise judicial power as a Chapter III Court under the Australian Constitution.[1] The decision has come to stand for the important doctrine of the separation of powers in Australia. The decision effectively rendered the Court defunct.

Following the decision, two new bodies were created to perform the function of the now-defunct Court. The Commonwealth Conciliation and Arbitration Commission was created in 1956 to carry out the non-judicial functions.[4] It was renamed the Australian Conciliation and Arbitration Commission in 1973,[5] the Australian Industrial Relations Commission in 1988,[6] Fair Work Australia in 2010,[7] and the Fair Work Commission in 2012.[8]

The Commonwealth Industrial Court was created to exercise the Court's judicial powers.[4] In 1973 the Industrial Court was renamed the Australian Industrial Court,[5] and in 1977 its functions were transferred to the new Federal Court of Australia.[9]

Notable decisions

One of the Court's early awards was the landmark Harvester case (Ex Parte H.V. McKay of 1907), delivered by Justice H.B. Higgins, which introduced the concept of the living wage into Australian industrial relations.[10] Within 25 years, the concept of a living wage had been extended to most of the Australian workforce, and influenced later decisions establishing certain types of paid leave, and equal pay for indigenous Australians and women.[11] During the Great Depression, the Court reduced wages by 10%.[10]

The Court also decided cases setting the standard working week in Australia. In 1904, the standard working week was 48 hours. In 1930, the Court reduced the working week to 44 hours. In 1947, the Court reduced the working week to 40 hours in a case that took two years to hear.[10][12]

List of presidents and judges
Position   Name Appointment
commenced		 Appointment
ended		 Term in office Comments Notes
PresidentRichard O'Connor10 February 190513 September 19072 years, 215 daysJudge of the High Court[13]
H. B. Higgins14 September 190729 June 192113 years, 288 daysJudge of the High Court[14]
Charles Powers30 June 192125 June 19264 years, 360 daysJudge of the High Court[15]
Chief JudgeGeorge Dethridge20 July 192629 December 193812 years, 162 days[16]
George Beeby15 March 193931 July 19412 years, 138 days[17]
Harold Piper1 August 194116 June 19475 years, 319 days[18]
Edmund Drake-Brockman17 June 19471 June 19491 year, 359 days[19]
Sir Raymond Kelly30 June 194925 July 19567 years, 25 days[20]
Deputy President Charles Powers10 October 191430 April 19205 years, 203 daysJudge of the High Court[15]
 Sir John Quick26 June 192225 March 193016 years, 10 days[21]
 Noel Webb26 June 192212 February 19274 years, 231 days[22]
Judge Lionel Lukin20 July 19266 July 193811 years, 351 days[23]
 George Beeby21 July 192631 July 194115 years, 10 days[17]
 Edmund Drake-Brockman18 April 19271 June 194922 years, 44 days[19]
 Harold Piper15 February 193816 June 19479 years, 121 days[18]
 Thomas O'Mara15 March 193914 October 19467 years, 213 days[24]
 Sir Raymond Kelly15 August 194125 July 195614 years, 345 days[20]
 Alfred Foster12 October 194426 November 1962 [lower-alpha 1]18 years, 45 daysDeputy President of the Commonwealth Conciliation and Arbitration Commission[25][26]
 Bernard Sugerman15 April 19469 September 19471 year, 147 daysResigned to take up appointment with NSW Supreme Court[27]
 Sir Richard Kirby26 August 19471973 [lower-alpha 1]25–26 yearsFirst President of the Commonwealth Conciliation and Arbitration Commission[29][25][30]
 Edward Dunphy27 April 194915 August 19567 years, 110 daysAppointed to the Commonwealth Industrial Court[31][25]
 Sydney Wright14 December 19501970 [lower-alpha 1]19–20 yearsDeputy President of the Commonwealth Conciliation and Arbitration Commission[32]
 Malcolm McIntyre4 July 195221 September 19531 year, 79 days[33][34]
 Sir Edward Morgan4 August 195215 August 19564 years, 11 daysAppointed to the Commonwealth Industrial Court[35][25]
 Richard Ashburner1 February 19541963 [lower-alpha 1]8–9 yearsDeputy President of the Commonwealth Conciliation and Arbitration Commission[25]

Notes
  1. Appointed for life and so maintained appointment as a judge even though the Court ceased to sit after 1956. The Court was only abolished after the retirement of its last member, Sir Richard Kirby in 1973.[28]

References
  1. R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10, (1956) 94 CLR 254.
  2. Commonwealth Conciliation and Arbitration Act 1904 (Cth).
  3. "Commonwealth Court of Conciliation & Arbitration" (http). Australian Trade Union Archives. Retrieved 18 January 2006.
  4. Conciliation and Arbitration Act 1956 (Cth).
  5. Conciliation and Arbitration Act 1973 (Cth).
  6. Industrial Relations Act 1988 (Cth).
  7. Fair Work Act 2009 (Cth).
  8. Fair Work Amendment Act 2012 (Cth).
  9. Federal Court of Australia Act 1976 (Cth).
  10. "Centenary of Federation and the Court/Commission". Australian Industrial Relations Commission. Archived from the original (http) on 5 January 2006. Retrieved 18 January 2006.
  11. Hamilton, R.S., ed. (2011). "Waltzing Matilda and the Sunshine Harvester Factory" (PDF). Fair Work Commission. ISBN 9780646548814. Retrieved 4 December 2018.
  12. "70 years ago today, the 40-hour, five day working week began". The Sydney Morning Herald. 1 January 2018. Retrieved 4 December 2018.
  13. Rutledge, M. "O'Connor, Richard Edward (Dick) (1851–1912)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  14. Rickard, J. "Higgins, Henry Bournes (1851–1929)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  15. "Appointment of Mr Justice Powers as a Deputy President" (PDF). Cth Gazette. 17 October 1914. p. 2358.
    Forster, C. "Powers, Sir Charles (1853–1939)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  16. Sharp, IG. "Dethridge, George James (1863–1938)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  17. Nairn, B. "Beeby, Sir George Stephenson (1869–1942)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  18. Selth, PA. "Piper, Harold Bayard (1894–1953)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  19. Sharp, IG. "Drake-Brockman, Edmund Alfred (1884–1949)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
    "Appointment Justice Drake-Brockman as Chief Judge" (PDF). Cth Gazette. 13 June 1947. p. 1607.
  20. Dabscheck, B. "Kelly, Sir William Raymond (1898–1956)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  21. Maslunka, M. "Quick, Sir John (1852–1932)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  22. "Noel Augustin Webb" (PDF). State Library of SA.
  23. Gill, JCH. "Lukin, Lionel Oscar (1868–1944) (1863–1938)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  24. "Mr Justice O'Mara dead". The Sydney Morning Herald. 14 October 1946. p. 4 – via National Library of Australia.
  25. "Appointments Industrial Court and Arbitration Commission" (PDF). Cth Gazette. 4 September 1956. pp. 2701A–2701D.
  26. Larmour, C. "Foster, Alfred William (1886–1962)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  27. Forbes, MZ. "Sugerman, Sir Bernard (1904–1976)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538 – via National Centre of Biography, Australian National University.
  28. Conciliation and Arbitration Act (1973) (Cth) s39.
  29. "Appointment Richard Kirby" (PDF). Cth Gazette. 11 September 1947. p. 2645.
  30. (1973) 149 CAR v.
  31. "Appointment Edward Dunphy" (PDF). Cth Gazette. 26 May 1949. p. 1517.
  32. "Appointment Sydney Wright" (PDF). Cth Gazette. 21 December 1950. p. 3309.
  33. "Appointment Malcolm McIntyre" (PDF). Cth Gazette. 7 August 1952. p. 3317.
  34. "Death of Mr. Justice McIntyre". The Sydney Morning Herald. 22 September 1953. p. 1 – via National Library of Australia.
  35. "Appointment Edward Morgan" (PDF). Cth Gazette. 21 August 1952. p. 3471.
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