McCawley v The King

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.