McCawley v The King - [1918] HCA 55

McCAWLEY

THE KING AND OTHERS

RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Constitutional LawQueenslandJudge of Supreme Court-Appointment-Tenure

of officeCommissionLegislative power of Parliament-Judge of Court of H. C. OF Industrial Arbitration-Qualification-Barriste of five years' standing- Industrial Arbitration Act 1916 (Qd.) (7 Geo. v. No. 16), see. Order in Council of 6th June 1859, clauses 2, 14, 15, 16, 22-New South Wales MELBOURNE, Constitution Act 1855 (18 &19 Vict. c. 54), Sched. I., sec. 38-Constitution Act Sept. 10, 11, 1867 (Qd.) (31 Vict. No. 38), secs. 2, 15, 16, 17-Supreme Court Act 1867 (Qd.) (31 Vict. No. 23), secs. 9, 10-Supreme Court Acts Amendment Act 1903 (Qd.) (3 Edw. VII. No. 9), sec. 3-Colonial Laws Validity Act 1865 (28 &29 Vict. e. 63), secs. 2. 3, 5-The Constitution (63 &64 Vict. c. 12), sec. 103.

Sec. 6 of the Industrial Arbitration Act of 1916 (Qd.) by sub-sec. 1 establishes the Court of Industrial Arbitration; by sub-sec. 2 directs the Governor in Council, by commission. to appoint a Judge or Judges of that Court, one of

26 CLR 10

whom is to be designated the President; and by sub-sec. 6 provides that

Notwithstanding the provisions of any Act limiting the number of Judges of the Supreme Court, the Governor in Council may appoint the

to be a Judge of the Supreme Court. The President if SO appointed as aforesaid, may exercise and sit in any jurisdiction of the Supreme Court, and shall have in all respects and to all intents and purposes the rights, privileges, powers, and jurisdiction of a Judge of the Supreme Court in addition to the rights, privileges, powers, and jurisdiction conferred by this Act, and shall hold office as a Judge of the said Supreme Court during good behaviour, and be paid such salary and allowances as the Governor in Council may direct, which shall not be diminished or increased during his term of office as a Judge of the Supreme Court or be less than the salary and allowances of a Puisne Judge of the Supreme Court and upon such direction the said payments shall become a charge upon the Consolidated Revenue. The President and each Judge of the Court of Industrial Arbitration shall hold office as President and Judge of the said Court for seven years from the date of their respective appointments, and shall be eligible to be re- appointed by the Governor in Council as such President or Judge for a further period of seven years." By sub-sec. 7 the section further provides that 'The President or a Judge of the Court appointed under this Act shall be a barrister or solicitor of not less than five years' standing," &.

The Queensland Constitution provided (see Order in Council of 6th June 1859, clause 15, and Act 18 &19 Vict. c. 54, Sched. I., sec. 38) that the commissions of the Judges of the Supreme Court should continue and remain in full force during good behaviour. In 1867 this provision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1918] HCA 55
Decision Date: 27 September 1918

CaseChat Overview and Summary

The case of *McCawley v The King* concerned an appeal from the Supreme Court of Queensland to the High Court of Australia. The dispute centred on the validity of the appointment of Thomas William McCawley as a Judge of the Supreme Court of Queensland. McCawley had been appointed President of the Court of Industrial Arbitration in 1917 and subsequently, by a commission issued in October 1917, was appointed a Judge of the Supreme Court of Queensland. The relators, George Arthur Carter and others, sought a writ of quo warranto to oust McCawley from this office, arguing his appointment was invalid.

The High Court was required to determine several legal issues. Firstly, it had to consider whether section 6(6) of the *Industrial Arbitration Act 1916* (Qld), which purported to authorise the appointment of the President of the Court of Industrial Arbitration as a Judge of the Supreme Court, was a valid exercise of legislative power. This involved examining whether this provision was consistent with the Queensland Constitution, particularly regarding the tenure of Supreme Court Judges, which was established as "during good behaviour" by the *Constitution Act 1867* (Qld) and its predecessor provisions. Secondly, the Court had to determine the intended tenure of office for a Judge of the Supreme Court appointed under section 6(6) of the *Industrial Arbitration Act 1916*, and whether the commission appointing McCawley was consistent with that tenure. Finally, the Court considered whether McCawley met the qualification of being a "barrister of not less than five years' standing" as required by the Act.

A majority of the High Court (Griffith C.J., Barton, Gavan Duffy, and Powers JJ., with Isaacs, Higgins, and Rich JJ. dissenting on some points) held that the commission appointing McCawley as a Judge of the Supreme Court was unauthorised by law and therefore invalid. The Court reasoned that the Queensland Constitution, as established by the Order in Council of 1859 and later consolidated in the *Constitution Act 1867*, mandated that Supreme Court Judges hold office during good behaviour, a tenure established by Imperial legislation and incorporated into the colonial constitution. Section 6(6) of the *Industrial Arbitration Act 1916* was found to be inconsistent with this constitutional provision, as it attempted to legislate for the appointment of a Supreme Court Judge with a tenure potentially different from that guaranteed by the Constitution. The Court applied the principle that a colonial legislature could not enact laws inconsistent with its constitutional framework, even if it possessed the power to amend that framework, unless it expressly did so. The commission's purported appointment "during good behaviour" was also found to be invalid because the underlying legislative power in section 6(6) was interpreted by a majority to limit the tenure to the period during which the appointee held the office of President of the Court of Industrial Arbitration, not for life.

The High Court further held, by a majority (Barton, Isaacs, Powers, and Rich JJ., with Griffith C.J. doubting and Higgins J. dissenting), that section 6 of the *Industrial Arbitration Act* purported to authorise an appointment of a Judge of the Court of Industrial Arbitration to be a Judge of the Supreme Court only for so long as they retained the office of a Judge of the Court of Industrial Arbitration. Additionally, a majority (Isaacs, Higgins, Powers, and Rich JJ., with Griffith C.J. doubting) found that McCawley, having been called to the Bar more than five years prior to his appointment as President but never having practised as a barrister, did satisfy the requirement of being a "barrister of not less than five years' standing". Despite this latter finding, the appeal was dismissed, and the decision of the Supreme Court of Queensland, which had ruled against the validity of McCawley's appointment, was affirmed.

Orders