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.

Commonwealth Court of Conciliation and Arbitration
Established	1904
Dissolved	1956
Jurisdiction	Australia
Authorised by	Conciliation and Arbitration Act 1904
Appeals to	High Court of Australia
Judge term length	Life

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

This section is transcluded from List of judges of the Commonwealth Court of Conciliation and Arbitration. (edit | history)

Position		Name	Appointment commenced	Appointment ended	Term in office	Comments	Notes
President		Richard O'Connor	10 February 1905	13 September 1907	2 years, 215 days	Judge of the High Court	[13]
		H. B. Higgins	14 September 1907	29 June 1921	13 years, 288 days	Judge of the High Court	[14]
		Charles Powers	30 June 1921	25 June 1926	4 years, 360 days	Judge of the High Court	[15]
Chief Judge		George Dethridge	20 July 1926	29 December 1938	12 years, 162 days		[16]
		George Beeby	15 March 1939	31 July 1941	2 years, 138 days		[17]
		Harold Piper	1 August 1941	16 June 1947	5 years, 319 days		[18]
		Edmund Drake-Brockman	17 June 1947	1 June 1949	1 year, 359 days		[19]
		Sir Raymond Kelly	30 June 1949	25 July 1956	7 years, 25 days		[20]
Deputy President		Charles Powers	10 October 1914	30 April 1920	5 years, 203 days	Judge of the High Court	[15]
		Sir John Quick	26 June 1922	25 March 1930	16 years, 10 days		[21]
		Noel Webb	26 June 1922	12 February 1927	4 years, 231 days		[22]
Judge		Lionel Lukin	20 July 1926	6 July 1938	11 years, 351 days		[23]
		George Beeby	21 July 1926	31 July 1941	15 years, 10 days		[17]
		Edmund Drake-Brockman	18 April 1927	1 June 1949	22 years, 44 days		[19]
		Harold Piper	15 February 1938	16 June 1947	9 years, 121 days		[18]
		Thomas O'Mara	15 March 1939	14 October 1946	7 years, 213 days		[24]
		Sir Raymond Kelly	15 August 1941	25 July 1956	14 years, 345 days		[20]
		Alfred Foster	12 October 1944	26 November 1962 [a]	18 years, 45 days	Deputy President of the Commonwealth Conciliation and Arbitration Commission	[25][26]
		Bernard Sugerman	15 April 1946	9 September 1947	1 year, 147 days	Resigned to take up appointment with NSW Supreme Court	[27]
		Sir Richard Kirby	26 August 1947	1973 [a]	25–26 years	First President of the Commonwealth Conciliation and Arbitration Commission	[29][25][30]
		Edward Dunphy	27 April 1949	15 August 1956	7 years, 110 days	Appointed to the Commonwealth Industrial Court	[31][25]
		Sydney Wright	14 December 1950	1970 [a]	19–20 years	Deputy President of the Commonwealth Conciliation and Arbitration Commission	[32]
		Malcolm McIntyre	4 July 1952	21 September 1953	1 year, 79 days		[33][34]
		Sir Edward Morgan	4 August 1952	15 August 1956	4 years, 11 days	Appointed to the Commonwealth Industrial Court	[35][25]
		Richard Ashburner	1 February 1954	1963 [a]	8–9 years	Deputy 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]