Waterside Workers' Federation of Australia v J W Alexander Ltd

[1918] HCA 56

25 CLR 434

THE WATERSIDE WORKERS' FEDERATION

OF AUSTRALIA J. W. ALEXANDER LIMITED

RESPONDENTS. Constitutional Law-Justices of Courts created by the Commonwealth Parliament-

Appointment-Life tenure-Appointment for term of years-Commonseelth Court of Conciliation and Arbitration-Power to enforce awards-Judicial power MELBOURNE,

of the Commonwealth-Validity of legislation-Severability-Power of Court of Sept. 18, 19,

summary jurisdiction to enforce awards-The Constitution (63 &64 Vict. c. 12), secs. 51 (xxxv.), 71, 72-Commonwealth Conciliation and Arbitration Act 1904 1915 (No. 13 of 1904-No. 35 of 1915), secs. 2, 11, 12, 38, 44, 48.

Held, by Griffith C.J. and Barton, Isaacs, Powers and Rich JJ. (Higgins and Gavan Duffy JJ. dissenting), that sec. 72 of the Constitution requires that every Justice of the High Court and every Justice (whether called by that or any other name) of any other Court created by the Parliament of the Common- wealth shall, subject to the power of removal contained in that section, be appointed for life.

Per Higgins and Gavan Duffy JJ.: Sec. 72 of the Constitution does not prevent the Crown or Parliament from granting a tenure for a term of years subject to removal by the Governor-General on an address of Parliament.

Held, also, by Griffith C.J. and Barton, Isaacs, Powers and Rich JJ. (Higgins J. doubting), that the power conferred by the Commonwealth Conciliation and Arbitration Act 1904-1915 upon the Commonwealth Court of Conciliation and Arbitration to enforce awards made by it is part of " the judicial power of the Commonwealth' within the meaning of sec. 71 of the Constitution, and can only be vested in the Courts mentioned in that section.

Held, further, by Barton, Isaacs, Powers and Rich JJ., that inasmuch as by sec. 12 (1) of the Commonwealth Conciliation and Arbitration Act the President of the Commonwealth Court of Conciliation and Arbitration is to be appointed

25 CLR 435

for seven years only, that section is at variance with sec. 72 read with sec. 71 of the Constitution, and the provisions conferring upon it power to enforce its awards are, therefore, invalid.

Per Griffith C.J.: Sec. 12 1 of the Commonwealth Conciliation and Arbitration Act 1904-1915 should be read as merely requiring the Governor- General to assign one of the Justices of the High Court to discharge the functions of President of the Commonwealth Court of Conciliation and Arbitration, and, so read, is not an infringement of sec. 72 of the Constitution, and is valid; one of the Justices had been so assigned, and therefore his appoint- ment as President by such assignment was valid and the President could both make awards and impose penalties.

Held, further, by Isaacs, Higgins, Powers and Rich JJ. (Griffith C.J. and Barton J. dissenting), that the provisions in the Commonwealth Conciliation and Arbitration Act conferring upon the Commonwealth Court of Conciliation and Arbitration power to enforce its awards are severable, and, therefore, that the rest of the Act is valid.

Per Barton J. The Court is constituted by a provision which is beyond the powers of the Parliament so as to vitiate the entire Act, the powers conferred on such invalidly created Court being judicial and not severable, and its awards are therefore invalid and unenforceable.

Held, further, by Isaacs, Higgins, Powers and Rich JJ., that under sec. 44

1of the Commonwealth Conciliation and Arbitration Act the penalties men- tioned in sec. 38 (d) of the Commonwealth Conciliation and Arbitration Act may be imposed by a Court of summary jurisdiction, notwithstanding that the Commonwealth Court of Conciliation and Arbitration has no power to impose CASE STATED. On the hearing before the Commonwealth Court of Conciliation and Arbitration of an application by the Waterside Workers' Federation of Australia, an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1915, that the Court should impose a penalty on J. W. Alexander Ltd. for the breach of a certain award of the Court, the President stated the following case for the opinion of the High Court :- 1. An award of the Commonwealth Court of Conciliation and Arbitration was made by the President on 1st May 1914 in an indus- trial dispute between Gilchrist, Watt and Sanderson and others, claimants, and the Waterside Workers' Federation of Australia, respondents. 2. A summons has been issued at the instance of the Waterside Workers' Federation of Australia on 13th August 1918. 25 CLR 436

3. The summons alleges that a breach of the said award had been committed by J. W. Alexander Ltd., a party bound by the said

WATERSIDE award. The summons came on for hearing before the Common

wealth Court of Conciliation and Arbitration on 23rd and 29th August 1918, and was adjourned to Monday, 9th September 1918. for certain affidavits.

4. Objection has been taken at the hearing of the said summons on 9th September by counsel for the said party that the Common wealth Conciliation and Arbitration Act is beyond the powers of the Commonwealth Parliament inasmuch as the President is under sec. 12 of the Act appointed for seven years only.

I submit the following questions for the opinion of the High Court-questions arising in the proceedings which are, in my opinion, questions of law :-

1 Is the constitution of the Commonwealth Court of Con-

ciliation and Arbitration beyond the powers of the Parliament of the Commonwealth, and in particular as to (a) the arbitral provisions; (b) the enforcing provisions ? 2 Is the award invalid by reason of the appointment of the

President for seven years only ? (3) Is the award enforceable by the said Court ? Owen Dixon, for the applicants. Starke, for the respondents, Sec. 71 of the Constitution confers the whole judicial power of the Commonwealth upon the Courts therein mentioned, and no other tribunal or body can exercise that power (Kilbourn v. Thompson (1); Wong Wing v. United States (2) ) Sec. 72 provides for the constitution of the High Court and of the Courts created by the Parliament. Every Court referred to in sec. 71 must be constituted in the manner provided by sec. 72, and the language of sec. 72 makes the tenure of the office of a Justice a freehold. Every Justice must hold his office for life subject only to his being removed for proved misconduct or incapacity. Whatever else the judicial power of the Commonwealth includes, it clearly includes power to decide between parties for the purpose either of

1103 U.S., 168. 2163 U.S., 228. 25 CLR 437

determining their rights or of determining whether one of them has broken the law or an award which has the sanction of law. (See Miller's Lectures on the American Constitution, p. 313).

[ISAACS J. referred to In re Sanborn 1.] If those propositions are true, the Commonwealth Conciliation and Arbitration Act 1904-1915 attempts to establish a Court of judicature within sec. 71 of the Constitution, and that attempt fails because under sec. 12 (1) the tenure of the office of President is only for seven years instead of for life, as required by sec. 72 of the Constitu- tion. Under sec. 51 (xxxv.) of the Constitution the power to settle disputes by means of arbitration might be conferred upon a Court exercising the judicial power of the Commonwealth. There is no reason why the Commonwealth Parliament should not have authority to impose upon a Court exercising judicial power the performance of other duties (See United States v. Ferreira (2).) That the Commonwealth Conciliation and Arbitration Act attempts to create a Court of judicature in the strict sense is shown by sec. 2, which states that one of the chief objects of the Act is to con- stitute a Court; by sec. 11, which makes the Court a Court of record and is peculiarly applicable to a Court exercising judicial powers and by a number of sections which confer on the Court powers which are strictly judicial, for example secs. 38 (d), (da), (e), (1), 48, 50. Sec. 31 appears to be only consistent with the Court being a Court of judicature, for that section implies that but for the provisions thereof an appeal would lie to the High Court from its decisions by force of some Statute. The power given by'sec. 37 to the Court to issue an order to any person to take evidence on its behalf, and the provision that such person shall have all the powers of the Court as to summon- ing witnesses, &., indicate that the Court is intended to be a Court of judicature. The High Court held in Jumbunna Coal Mine, No Liability, v. Victorian Coal Miners' Association 3 that the Com- monwealth Court of Conciliation and Arbitration is a Court of judicature from which an appeal lay to the High Court. In The Tramways Case [No. 1] 4 and The Tramways Case [No. 2] 5 the

1148 U.S., 222, at p. 224. 36 C.L.R. 309. 418 C.L.R., 54. 519 C.L.R., 43. 25 CLR 438

High Court also held that the Commonwealth Court of Conciliation

and Arbitration is a Court of judicature or a Court exercising or claiming to exercise the judicial power of the Commonwealth The provision in sec. 12 of the Commonwealth Conciliation and Arbitration Act that the President is to be "appointed from among the Justices of the High Court and is to be entitled to hold 44 'office " during good behaviour for seven years, is a contravention of sec. 72 of the Constitution. The word "appointed" is used in the same sense as in sec. 72, and indicates an appointment to an office in the ordinary sense. The section creates a new office, and authorizes the Governor-General to appoint a person to that office. If the Act is not an attempt to create a Court within sec. 71 of the Constitution and to give to that Court powers to settle disputes by conciliation and arbitration, then alternatively the Act has created a tribunal under sec. 51 (xxxv.) and has attempted to confer upon it the judicial power of the Commonwealth. To the extent of that attempt, at least, the Act is ultra vires.

Owen Dixon. The Court constituted by the Commonwealth Conciliation and Arbitration Act was primarily constituted under sec. 51 (xxxv.) of the Constitution, and sec. 38 (d) and (e) and sec. 48, SO far as they are grants of judicial power, attach to a tribunal created under sec. 51 (xxxv.) for the primary purpose of settling disputes by conciliation and arbitration. Under sec. 51 (XXXV.), which may be used in conjunction with sec. 71 of the Constitution, it is perfectly proper to create a Court, and to arm that Court with the powers incidental to the performance of its purpose of settling disputes. The tribunal SO set up is, so far as the machinery provided and the powers conferred on it are concerned, capable of performing either or both of the functions of creating duties and enforcing their performance. That the primary object of the Act is the settling of disputes is shown by sec. 2, which does not mention among the chief objects of the Act the enforcing of awards made by the Court, and by the great bulk of the provisions of the Act. To the powers for settling disputes certain powers admittedly judicial are added upon the assumption that the Court which was created was a Court to which judicial powers could be given without conflicting

25 CLR 439

with sec. 72 of the Constitution. There is no such conflict, because sec. 72 admits of an appointment of a Justice for a term of years. That section has nothing to do with the length of tenure, but only provides that when the tenure is created it shall not be terminated except in the specified manner. It is a limitation upon the power of the Parliament, and not the creation of a power in the Governor- General or the Parliament. The language of sec. 72 is not the ALEXANDER usual language used in creating a life tenure. (See Act of Settlement, 12 &13 Will. III. c. 3, sec. 3 British North America Act 1867, sec. 99.) Unless there can be a tenure for a term of years the Parliament cannot create temporary Courts, and if it creates magistrates they must be given life tenures. The word "removed" means putting an end to the tenure before it would otherwise expire, and is not inconsistent with a tenure for a term of years. (See secs. 67 and 103 of the Constitution.) If sec. 72 of the Constitution does require an appointment for life, the powers conferred by sec. 38 (d) and (e) and sec. 48 of the Commonwealth Conciliation and Arbitration Act, which are judicial powers, could not be conferred upon the Commonwealth Court of Conciliation and Arbitration as constituted, and they are invalid. But they are severable from the rest of the Act. All the other provisions of the Act deal with powers for bringing into exist- ence legal rights and obligations, while the judicial powers are for enforcing legal rights already in existence. The former are arbitral powers, and are in a sense legislative. The arbitral powers are distinct from the judicial powers. The main object of the Act was to create a tribunal with arbitral powers, and the judicial powers are subordinate and in no way an essential part of the scheme. Awards can be enforced under sec. 44 (1) by Courts of summary jurisdiction. The words "penalties which the Court has power to impose' are used merely as a short description of the penalties mentioned in sec. 38; and if the Commonwealth Court of Concilia- tion and Arbitration has not the power to impose penalties, that does not preclude Courts of summary jurisdiction from having the power. As to the argument that the making of the Commonwealth Court of Conciliation and Arbitration a Court of record shows that the intention was primarily to create a Court of judicature, to make it a Court of record was an apt way of giving the tribunal created

25 CLR 440

under sec. 51 (XXXV.) of the Constitution power to enforce the duties

and rights arising from the exercise of its arbitral functions. (See Kemp v. Neville 1; Grenville v. College of Physicians 2. )

Weigall K.C. (with him Mann), for the Commonwealth inter- vening. This Court will not, except in the last resort, declare an Act of the Commonwealth Parliament to be ultra vires, and if there is an ambiguity in one of the provisions of the Constitution and one interpretation will uphold the validity of the Statute and the other will destroy it, the Court will lean to the former interpretation. The opening words of sec. 72 of the Constitution should be inter- preted as meaning "The Justices of the High Court and such other persons not being Justices of the High Court who are Justices of the other Courts created by the Parliament." The section does not contemplate a Justice of the High Court being also a Justice of another Court created by the Parliament. In that view the pro- vision for the appointment of a person who is already a Justice of the High Court to be President of the Commonwealth Court of Conciliation and Arbitration is not affected by sec. 72 of the Con- stitution. The word "appointed" in sec. 72 means "designated" -the Justices are to be "instituted in their office' by the Governor- General. The word has no reference to the tenure of the office of Justice, and does not imply a tenure for life. That is shown by sec. 103, where the word "appointed" is used in reference to a tenure for years. That the intention was to allow an appointment of a Justice of the High Court for a term of years is as probable as that it was to insist that the Justices of every Court created by the Parliament, including magistrates, should be appointed for life. The word "Justices" in sec. 72 does not include every person who presides over a Court created by the Parliament. There may be Judges of those Courts who are not "Justices." (See Stroud's Judicial Dictionary, 2nd ed., vol. I., p. 424.) The person who presided over a Court Martial, for instance, would not be a "Justice." So the President of the Commonwealth Court of Conciliation and Arbitra- tion is not a "Justice" within the meaning of sec. 72.

110 C.B. (N.S.), 523. 212 Mod., 386, 25 CLR 441

Starke, in reply, referred to Willoughby's Constitutional Law H. C. OF of the United States, vol. II., pp. 1274, 1276.

Cur. adv. vult. The following judgments were read :-

GRIFFITH C.J. The first question submitted to the Court in this case is: "Is the constitution of the Commonwealth Court of Conciliation and Arbitration beyond the powers of the Common- wealth, and in particular as to (a) the arbitral provisions (b) the enforcing provisions ? 22 I will say a word later as to the meaning of this language.

The suggested want of jurisdiction arises from the tenure of office of the President of the Court, which I will call the Arbitration Court. This, it is suggested, is inconsistent with the provisions of the Constitution.

Sec. 71 of that instrument declares that "the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction." This does not purport to be in itself a power, although it assumes the existence of a power to create new Federal Courts and to invest existing State Courts with Federal jurisdiction. The power itself is found elsewhere in the Constitution. But any attempt in the execution of that power to vest judicial power in any tribunal that is not such a Court is ineffectual.

The judicial power is a well known attribute of sovereignty. This Court has not hitherto been called upon to make a critical examination of its nature.

The provision of sec. 71 is, indeed, novel in the Empire, since the powers of other British legislatures are not limited by any such restrictions. It is, however, well known in the United States of America. Any inconvenience which may follow from giving effect to the express provisions of the Constitution cannot be con- sidered in determining their meaning.

A few words on the source and nature of the power may not be out of place.

25 CLR 442

As soon as man emerged from the savage state and formed settled communities, the necessity became apparent of rules to regulate conduct. It also became necessary to make provision for their enforcement, and for the settlement of private controversies between individuals. In each case the right to do SO was assumed by the community at large, and vested in some person or authority

ALEXANDER representing that community. Hence arose lawgivers and Judges.

And as civilization advanced, and persons came to discriminate between the diverse functions of the community, these functions were called the judicial power" as distinguished from the legis- lative and executive powers.

The distinction is emphasised in the Constitution in sec. 71 already cited. It is impossible under the Constitution to confer such functions upon any body other than a Court, nor can the difficulty be avoided by designating a body, which is not in its essential character a Court, by that name, or by calling the functions by another name. In short, any attempt to vest any part of the judicial power of the Commonwealth in any body other than a Court is entirely ineffective.

The Constitution also provides (sec. 72) that Justices of the High Court and of the other Courts created by the Parliament shall be appointed by the Governor-General in Council, and shall not be removed except by the same authority on address from both Houses of Parliament praying for such removal on specified grounds. These words, which apply to all Federal Courts alike, have always been assumed, and I think rightly, to mean that the tenure of all Federal Judges shall be for life, subject to the power of removal.

Without attempting an exhaustive definition of the term "judicial power," it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter.

It is suggested that a right must have an origin independent of its enforcement. This is mainly a matter of words, but logically

I think it must be SO. In my opinion, a law which allows a right to be claimed and at the same time to be declared and ordered to have

25 CLR 443

effect is, in any view, conclusive as to the existence of the right H. from the moment of declaration. It must therefore be prior, if only momentarily, to the exercise of the judicial power in respect of it, whether the declaration itself be (as I think it is) or be not a judicial act. The judicial function begins not later than that moment.

The basis of industrial arbitration, SO called, is the recognition of the doctrine that employers and workers engaged in an industry have mutual rights and obligations. These rights and obligations must either be incidental to the membership of a civilised com- munity, or based upon positive law. Whether the obligation is regarded as (a) created by the Statute, or (b)-which I think the better view-implied by the Statute which authorizes its declaration and enforcement, or (c) imposed for the first time by the tribunal appointed to declare and give effect to the claims, such giving effect by declaration and order is equally a matter which falls within any possible meaning of the term " "judicial power."

The creation of a new legal right of general obligation appears to me to be a matter for legislation. In the case of an award, however, between disputants, the order is not legislative, for it does not lay down any such rule but merely deals with a particular case.

It has been contended that the power of the President of the Arbitration Court as to the mutual obligations of employers and workmen is autocratic, not founded upon any known principles of law, and limited only by his own will, which, when declared, becomes, like the Roman lady's, the law of the land. I do not accept this view, but it does not affect the question of the nature of his subse- quent functions.

For, in any view, the duties which are to be declared by a tribunal consequent upon a legal obligation are matters for the exercise of judicial power. For myself, I cannot understand the creation of a tribunal except for declaring and giving effect to some right existing at the time of such declaration and giving effect. If, however, the only powers conferred upon a so-called tribunal are in the nature of calculation, or the mere ascertainment of some physical fact or facts, and not the declaration of or giving effect to a controverted matter of legal right, it may be that they do not appertain, except

25 CLR 444

incidentally, to the judicial power. It is not disputed that con-

victions for offences and the imposition of penalties and punishments

WATERSIDE are matters appertaining exclusively to that power. The duties

and obligations which may be declared and ordered by an industrial tribunal to be performed in virtue of the rule of conduct, however originating, of which it enjoins the performance, are precisely similar in kind, and are not less onerous in effect.

It is hardly necessary to point out that the question whether any specific function does or does not appertain to the judicial power depends upon its nature, and not upon the name by which the authority which exercises it is designated in a Statute, or upon what it is called in argument. The exercise of a function which is in its nature judicial may by agreement between parties be delegated to a specific person, commonly called an arbitrator but the obliga- tion to obey the directions which a person SO designated may give, is, by our law, conventional; that is, it is attributed to the agreement and not to the nature of the function.

The Parliament, basing its action, as I have said, upon the principle of mutual obligation, which it either enacts or (as I think) treats as already recognized by law, provides (sec. 11) that there shall be a Commonwealth Court of Conciliation and Arbitration, which shall be a Court of record, and shall consist of a President." The jurisdiction of the Court is carefully and fully defined. It has cognizance (sec. 19), for purposes of prevention or settlement, of (inter alia) all industrial disputes properly submitted to it by plaint. It has power (sec. 24) to determine the dispute by what is called an award, which is to be in force for a period not exceeding five years (sec. 28), and may impose obligations of the most onerous character on either party. In particular the Court has power (sec. 38) to make any order or give any direction in pursuance of the hearing or determination (sec. 38 (b)), to fix maximum penalties (38 (c)) for any breach or non-observance of an order or award, and to impose penalties up to such maximum (sec. 38 (d)), to order compliance with any order or award (38 (da)), to grant mandamuses and injunctions against committing or continuing a contravention of the Act (sec, 38 (e)), and in several other respects to exercise the ordinary powers of a Court of justice.

25 CLR 445

The Court was thus invested, uno flatu, with ample and complete H. jurisdiction to declare and enforce the mutual obligations of the parties.

The exercise of the power to impose penalties is admittedly an exercise of the judicial power. If the Court has no such power the provision is, of course, of no effect. Any penalties which the Court may itself impose, but no others, may be imposed by State Magis- trates' Courts (sec. 44).

It follows that if the Court itself has no power to impose penalties the power is non-existent, and the attempt to confer this non- existent power by reference must fall with it.

Moreover, sec. 31 provides that no award or order of the Court shall be appealed against. Every appeal is the creature of Statute. Under sec. 73 of the Constitution an appeal lies to the High Court from every Federal Court with such exceptions as the Parliament prescribes. If the Arbitration Court is, as it is called by the Parlia- ment, a Court, it is a Federal Court, and the provision of sec. 31 is necessary to deny the right of appeal which would otherwise exist. If it is not, the provision is superfluous.

But, if any doubt could exist whether the office of President of the Arbitration Court is a judicial office, it seems to be removed by sec. 8 of the Judiciary Act, which enacts that a Justice of the High Court (which the President is and must be) shall not be capable of holding any other office within the Commonwealth, except a judicial office conferred on him by a law of the Commonwealth. The fact that the office of President of the Court created by the Arbitration Act was required by the same Act which declares that Court to be a Court to be exercised by such a Justice shows in the plainest manner that the intention of the Parliament was to confer such an office as could lawfully be conferred upon him, that is to say, a judicial office, and that his functions were to be judicial.

I have already pointed out that many, if not all, of these functions are matters appertaining to the judicial power, and that authority to deal with them cannot therefore be committed to any tribunal but a Court. If the Arbitration Court is not such a Court, it cannot impose penalties at all, and, as I have said, the authority of the

25 CLR 446

Magistrates' Courts, being coextensive, falls with it, SO that the whole

Act is, SO far, futile.

It might be inferred, indeed, that the Parliament in conferring powers that can only be exercised by a Court intended that the tribunal upon which they were conferred should be a Court. But in this case there is no need, nor indeed room, for inference, since the [J W.

Parliament has said expressly (sec. 11) that it was establishing a Court of record. In answer to this reasoning it is said that the functions of the Court, or most of them, are "arbitral," whatever that may mean, and not "judicial." This argument is based upon the assumption that the term "judicial power" and the term "arbitral power," used as a counter for the purposes of this case, are mutually exclusive, SO that if one term is properly applied to any function the other is necessarily denied. This is an obvious fallacy. The law cannot in any case be altered by the use of a new epithet, or by applying a new meaning to an old one. The question is whether the specific functions, or some of them, do or do not appertain to the judicial power, not whether they, or some of them, may with propriety, alio intuitu, be called arbitral." The epithet arbitral," which is used as if its use were on some points conclusive, is not a term of art. As used in the English language it merely expresses the idea of an authoritative decision between adverse parties, irrespective of the person who makes it. Such a decision is neces- sarily given on every occasion of the exercise of the judicial power, including the assessment of value or damages by a jury (which is clearly a judicial act), or by an arbitrator properly and ordinarily

SO called. The epithet, in short, qualifies the nature of the decision, and is only inferentially or by relation applied to the person who gives it. When a tribunal, by whatever name it is known, is only required to decide quantitative questions, such as questions of amount or value, or in some cases, questions of physical fact, the term "arbitral" may with propriety be applied to it. But whenever the tribunal is required to decide questions of conduct, whether under existing law or under its own decree, its functions are, to that extent at least, judicial. As to their being legislative, I have already pointed out that they are of particular and not of general applica- tion. Whether the epithet arbitral" may or may not be properly

25 CLR 447

applied to every tribunal in another and larger sense is a different and irrelevant question.

But, as I have said, the meaning of a Statute cannot be altered, or the character of the functions of a tribunal affected, by giving a new meaning to an old word, or by using ambiguous terms in argu- ment.

For these reasons I am of opinion that the Arbitration Court is, as the Parliament thought and intended it to be, a Court created by it.

It follows that the judicial officers of the Court must hold office during good behaviour, and that an appointment for a less period is ineffectual.

What, then, is the tenure of office of the President? The language of sec. 12 is as follows "The President shall be appointed by the Governor-General from among the Justices of the High Court. He shall be entitled to hold office during good behaviour for seven years

The language demands careful examination. It says nothing in express terms about the tenure, eo nomine, of the President's office, but it provides that he shall be appointed "from among the Jus- tices of the High Court," that is, that he shall be a person who already as a Justice of the High Court holds judicial office during good behaviour. Again, it is not expressed that he is to be appointed for any definite term, but that he shall be entitled to hold office" for a period of seven years. The word "appoint," which in modern times is often used to designate an executive act by which an office, old or new, is conferred upon a person, is not in law confined to that meaning. In the common phrase " direct limit and appoint" it is synonymous with "direct" or "assign," and in earlier English legal language it was often used in that sense. It is also used in the sense of select."

The word does not of itself import any particular duration or tenure of office. Whenever used, its meaning may, and indeed must, be controlled by the subject matter and the context. If the subject matter is an office in the ordinary service of the State the duration connoted is during pleasure. If it is a Federal judicial office the tenure connoted is during the life of the officer, subject

25 CLR 448

again to the context. Thus, in sec. 72 of the Constitution the

power to appoint is a power to appoint for life. In sec. 103 the power to appoint is a power to appoint for seven years. In sec 12 of the Arbitration Act the word is used in a new and unusual context. The person to be appointed has already a life tenure of the qualifying office of Justice. No additional remuneration

ALEXANDER is conferred upon him, and there is nothing in the words used to

suggest that any new or additional personal right or advantage IS Griffith C.J. to be given him. On the contrary, the suggested words of limita-

tion are words of additional privilege, and he is not bound, but "entitled," at his own will to discharge the duties of President for seven years. The only sanction for the obligation to discharge the duties of a Federal judicial office is that contained in the power of removal. I do not find any violation of the law as to tenure of office or of that provision in sec. 12 of the Arbitration Act.

I am therefore of opinion that the word "appointed" must in its actual context be read as meaning "assigned," and the provision must, in accordance with what I conceive to be the manifest intention of the Parliament, be construed as the imposition of a new judicial duty, although of imperfect obligation, upon a person who already holds a permanent judicial office under the Constitution. Such a provision is not unfamiliar to English jurisprudence, and has never been considered inconsistent with the Act of Settlement.

It is not necessary for this conclusion that the view which I adopt should be the only possible one. It is sufficient that it should be open upon the Statute. There is no doubt that it is in accordance with the intentions of the Parliament.

In my judgment, the enactment may, without doing violence to its language, be read as merely requiring the Governor-General to assign one of the Justices of the High Court to discharge the functions of President. The succeeding words do not offer any serious difficulty.

I do not think that this Court can, consistently with its previous decisions or with common sense, dissect the Arbitration Act, and hold, contrary to the plain intention of Parliament, that the Presi- dent, a single person, is validly appointed for some of its purposes and not appointed for the others. In my opinion, his appointment

25 CLR 449

25 C.L.R.]

OF AUSTRALIA. if bad in part is bad altogether. To hold otherwise is to make, H. not to declare, the law, and to declare a very different law from that enacted by the Parliament.

I presume that the word "arbitral" is used in question 1 in the sense of non-judicial." I frankly admit my inability to make any intelligible distinction from this point of view between the different provisions of the Act. The question must therefore be answered ALEXANDER as a single and indivisible one, either Yes," or "No."

I therefore answer the first question wholly in the negative. To the second, which is " Is the award invalid by reason of the appointment of the President for seven years only ? 22 I answer: It is not invalid by reason of the manner of the appointment of the President.

To the third question I answer: The award is enforceable by the Court.

If, however, my view as to the tenure of office of the President is wrong, I answer all the questions in the opposite sense.

BARTON J. This is a case stated by my brother Higgins as President of the Commonwealth Court of Conciliation and Arbitra- tion. During the hearing of an industrial dispute under the Arbitra- tion Act between the Waterside Workers' Federation and the firm of J. W. Alexander Ltd. the following questions arose, on which the President requires the opinion of this Court as questions of law the (1) Is the constitution of the Commonwealth Court of Conciliation and Arbitration beyond the powers of the Parliament of the Commonwealth, and in particular as to (a) the arbitral provisions (b) the enforcing provisions ? (2) Is the award invalid by reason of the appointment of the President for seven years only ? (3) Is the award enforceable by the said Court ? "

The contention of the respondent is that the Act is invalid and inoperative, because the tribunal which it erects is a Court created by the Federal Parliament within the meaning of the judicature provisions (secs. 71 and 72) of the Constitution, and that the head of that Court, the President, is appointed to his office in a manner which is in violation of the requirements of sec. 72. It is urged that part of the judicial power of the Commonwealth is vested in

25 CLR 450

the Arbitration Court as such created Court within the meaning of

sec. 71, and therefore that the President is the "Justice" of that Court, and should hold his office on the terms ordained by sec. 72 that he "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

ALEXANDER misbehaviour or incapacity." As a matter of fact he is appointed

President on the terms of sec. 12 (1) of the Arbitration Act, which reads thus :- The President shall be appointed by the Governor- General" (which means the Governor-General in Council) from among the Justices of the High Court. He shall be entitled to hold office during good behaviour for seven years, and shall be eligible for reappointment, and shall not be liable to removal except on addresses to the Governor-General from both Houses of the Parlia- ment during one session thereof praying for his removal on the ground of proved misbehaviour or incapacity."

It should be noted that by sec. 13 the President is to be paid no other salary in respect of his services under the Act than his salary as Justice of the High Court.

The first matter to be considered is whether the name of Court,' which is used throughout the Act, is correctly applied-that is, whether the tribunal to which it is applied is in law a Court exercising part of the judicial power of the Commonwealth. It is urged that the tribunal is created under the power granted in sec. 51, sub-sec. xxxv., of the Constitution, and is therefore not one of the Courts designated as such by the Constitution in the sections referred to. Outside these sections the Constitution gives no authority to allocate any of the judicial power to other tribunals than those mentioned in sec. 71. If in the execution of its authority under sec. 51, sub-sec. XXXV., the Parliament creates a tribunal having judicial power, that sub-section does not take the tribunal out of the category of Federal Courts created by the Parliament.

Has, then, the Arbitration Court any of the judicial power of the Commonwealth ? If that question is answered in the affirmative, its head must be a person appointed as sec. 72 requires. I will inquire what the answer to that question ought to be.

The lectures on the Constitution of the United States delivered

25 CLR 451

by Mr. Justice Miller, of the Supreme Court of the United States, to the law students of the National University at Washington, in 1889 and 1890, include one on the judicial power." After examin- ing the nature of "judicial power" he gives it the following defini- tion (p. 314): It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." I respectfully adopt these words. They were written of judicial power in the United States, but they are equally true of the same power in this Commonwealth. In Osborn v. Bank of the United States 1 the Court in its judgment said: "Judicial power is never exercised for the purpose of giving effect to the will of the Judge always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.'

It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.

From the earliest times, when people have associated them- selves into settled communities, their interest has dictated to them the adoption of rules of conduct as the alternative to anarchy and as the only means of securing internal peace in the pursuit of their avocations. The making of such rules, by whatever term it may have been known, is the making of laws; that is, it is legislation. But laws of themselves were of little force without bodies which could enforce them-and authorities with power to enforce them were created. These authorities might or might not be called Judges, the tribunals might not be called Courts, and the power which they exercised might or might not be called judicial power. Whether persons were Judges, whether tribunals were Courts, and whether they exercised what is now called judicial power, depended and depends on substance and not on mere name. Enforceable decision by an authority constituted by law at the suit of a party submitting a case to it for decision is in character a judicial function.

19 Wheat., 738, at p. 866. 25 CLR 452

OF A. "Court" as the name of a place is merely a secondary meaning

'The Court is the deciding and enforcing authority, even if it sits under a tree, as sometimes it does in parts of the British Empire.

Besides Courts of compulsory powers for the bringing before them of defendants or delinquents, for deciding the matter with or without assistance of juries and for enforcing the decision.

ALEXANDER it has at all times been common for individuals or the State to have

recourse to tribunals lacking some or all of these compulsive powers, and especially lacking the power of enforcement. An instance is the ordinary proceeding of arbitration. Parties differing on any subject have agreed to submit their differences to some person or persons for decision, it being also agreed that the decision shall be adopted by both sides contractually. The persons invoked have generally been called among English-speaking people arbitrators and umpires, and their conclusions awards. Such proceedings, being without compulsive force in any stage, were, of course, not instances of the judicial power. It has been a common thing for Governments to institute bodies called Commissions, with the temporary function of investigating and pronouncing on questions of fact for the mere information of the public, or as a foundation for executive or legislative action. There are many other instances of the creation of bodies of varying authority, whose work is judicial in the sense of bringing to bear the judicial faculty, but not judicial in the sense of the exercise of power upon the parties in their con tention. In these cases of course what is known as such in the Constitution and what is SO tersely described by Mr. Justice Miller does not exist. In the present case, however, as I shall urge, there is the grant of judicial power over a lis or dispute between parties from its beginning to its end.

The judicial power is conferred and exercised by law and coercively the parties have not power to agree upon the deciding authority and its decisions are made against the will of at least one side, and are enforced upon that side in invitum. An authority of that kind is not invoked by mutual agreement, but exists to be resorted to by any party considering himself aggrieved, whether he be called a claimant, a plaintiff, a petitioner, or the like. In all instances he is in fact a claimant. If a law allows anything to be claimed

25 CLR 453

by one person against another and grants it to him as a right against H that other, the legislature means by its law that that right exists, whether it existed as a right declared by law before the claim, or WATERSIDE whether, on the other hand, the claim of it when substantiated is recognized by law as a right. If the legislature sets up a tribunal to summon one side at the call of the other, to adjudicate between them, and to enforce its adjudication, by a determination which may be in favour of either side, then the tribunal is exercising judicial power, and may be a Court in the strict meaning of the term. It is a Court, if the legislature gives it the attributes of one, from the institution down to the determination, and if necessary the enforcement. of the claim. When such intention and attributes are clear it must be also clear that the Court is granted the exercise of judicial power. That power may be granted to an authority which has other functions in addition. But the addition does not detract from its character of a Court when it can exercise the power in question.

Does the tribunal created by the Arbitration Act substantially answer to these tests, SO as to be a Court of judicial power ? That question can be solved only by the provisions of the Act.

By sec. 19 the tribunal has cognizance, for purposes of settlement as well as prevention, of certain industrial disputes extending beyond the limits of any one State. The disputes are in a category of several sub-sections. It is worthy of note that the category includes disputes submitted by plaint on the part of an organization, or an association registered as an organization (see interpretation clause). By sec. 24, the parties may agree to settle their dispute, and if a written memorandum of the terms is certified by the President and then filed, it has the same effect as between the parties to the agreement as an award, and is deemed to be such. The award, of course, is the determination of the tribunal upon the dispute. If no agreement as to the whole of the dispute is arrived at, the tribunal is to determine it by award, and SO as to any part of the dispute not settled by the agreement. In my opinion the Act gives the award the same qualities as a judgment enforceable by subse- quent proceedings. By sec. 28 the award is to be framed in such a manner as to best express the decision of the Court," and, subject

25 CLR 454

to any variation which the tribunal may order, is to continue "in

force " for a specified period not exceeding five years, and after such period until a new award has been made. During that time it binds the parties. Sec. 38 contains several matters of importance to this question. It specifies many powers granted to the Court as regards industrial disputes of which it has cognizance. Besides (a) the power " to hear and determine the dispute in manner prescribed,' it has (d) power to impose penalties for proved breach or non-observance of any term of an order or award"; it may (da) order compliance with any term of an order or award" on proved breach or non- observance. It may (e) enjoin against contraventions of the Act: it may (i) order a party to the dispute to pay another party's costs and expenses it may (i) hear and determine a dispute in the absence of a party summoned or notified to appear (a provision which brings into strong relief the compulsive force of the Act), and (1) it may conduct any part of its proceedings in private. Then by sec. 44 (1) any penalties "which the Court has power to impose on any breach or non-observance of any term of the order or award by any organization or person bound thereby may be imposed by any Police, Stipendiary or Special Magistrate in summary jurisdiction. And by sub-sec. 2 the penalty may be recovered by (a) the Registrar, or (b) any organization affected or having any member affected, or (c) the member affected. By sec. 45 the Court is given power to order the penalty to be paid into the Consolidated Revenue or to an organization or person specified. By the same section the same power is given to any Court of summary jurisdiction imposing any such penalty. As the latter Court is a Court invested with Federal jurisdiction within the meaning of the Constitution, sec. 71, the implication that the Arbitration Court is a created Federal Court is strengthened by this section. The implication that the tribunal is intended to have judicial power is reinforced by sec. 46.

I instance these sections in proof that the intention of the Legis- lature was that the tribunal it was creating, and which it declared to be a "Court of record," should be a Court in the full sense of a body endowed with judicial power in the spheres of the reception, institution, determination of controversies, and the enforcement of the determination for the term 'industrial dispute " connotes one

25 CLR 455

kind of controversy, and the term "settlement by award" is another H. C. term for an adjudication; and the power of adjudication is combined with the power of enforcement by penalty for disregard of the adjudication. It is not to the purpose to say that a power of enforcement may also be exercised in Courts of summary jurisdiction; for those powers are given only in cases where the Court itself has power to impose the penalties. The power to the minor Courts is ALEXANDER given presumably because at the time of the disregard the Federal Court may be sitting or otherwise doing duty at some very distant part of the huge area of the Commonwealth, It is always accessible in the sense of being capable of being invoked to use its power of enforcement. The power to other tribunals is given as an alternative because of the inconvenience and delay which may attend an applica- tion to the Arbitration Court itself. But the Legislature has clearly indicated that the existence of the power in the Arbitration Court is the condition precedent to the exercise of the concurrent power by the other local tribunals. The complete judicial power entrusted to the created Court is intended to be an inseparable part of its functions, and I cannot for a moment say that an attempt to separate its functions into two parts would not alter the character of the Act. The functions which in the question are called "arbitral" and those which are called "enforcing" are collectively one set of powers in respect of a collective set of functions. Parliament does not appear to have conceived the idea of one of the two spheres of power being severable from the other, SO that the one without the other would constitute such a piece of legislation as it had in its mind. In other words, its intention was that the two should coexist in the same tribunal as parts of one whole. In this view, Parliament, in providing by sec. 11 that the tribunal created should be a Court of record, had in mind the powers it was giving as a whole. In its usual

acceptation theterm " Court of record" indicates a body which has power both to make its determinations and to enforce them. If we turn to sec. 31 (1) the intention to create a "Court' (the name applied to the tribunal throughout the Act) becomes more obvious. Looking at the words 'prohibition mandamus or injunction" in sec. 31 (1) and the words writ of mandamus or prohibition or an injunction" in sec. 75 (v.) of the Constitution, and looking also

25 CLR 456

A. at the fact that the issue of those writs is given thereby to the High

Court and is not given to any other Court of the Commonwealth, it is plain that the words "other Court" in sec. 31 (1) apply to the High Court, and indicate beyond dispute that the two Courts are intended to be regarded as both of them Courts of justice of the Commonwealth, in other words that, like the High Court, though with a different jurisdiction, the Arbitration Court has a grant of judicial power. Again, take the words "appealed against in the same sub-section of the Arbitration Act. The object of the Legis- lature was to prevent an appeal which would otherwise have lain against an award or order. We are thus driven to sec. 73 of the Constitution, which gives the High Court jurisdiction, with such exceptions

as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences

(II.) of any other Federal Court," &. There could be no appeal to be excepted by Parliament in the case of the Arbitration Court unless it were the appeal to the High Court from the Arbitra- tion Court as coming within the term "other Federal Court." On any other reading sec. 31 (1) of the Arbitration Act would be superfluous and nugatory, and an intention to enact futilities IS not to be ascribed to Parliament. It may be said that an award does not come within the term "judgments, decrees, orders, and sentences" in sec. 73. But an award is in essence an order, continuing and binding for the whole of its period. The term " order and award" in the formal awards of the Court properly recognizes this; the more properly because the term "award or order" is frequently used in the Act, indeed in this very section. We see this even in sec. 44, already referred to. Sec. 47 (1) expressly gives the Court another attribute, albeit in this instance a limited one, of a Court of justice. It is a power to issue process for the purpose of enforcing compliance with any "order or award."

I do not think that the conclusion can be escaped that in the Commonwealth Court of Conciliation and Arbitration the Legislature has reposed part of the judicial power as a created Federal Court within the meaning of secs. 71 and 72 of the Constitution. It has reposed that power both in the so-called "arbitral" and in the

25 CLR 457

enforcing provisions. As to both, the granted powers are com- H. C. OF pulsory. The defending parties are compellable to attend, witnesses are compellable to testify, the awards are judicial orders (there are few if any awards which do not order payment of specified rates of wages over a period of years, and in this connection sec. 40 (1) (b) is instructive) and these orders have a penal sanction.

I am thus of opinion that the tribunal erected by the Act is a ALEXANDER Court in the strict sense, that part of the judicial power of the Commonwealth is reposed in it, and that the Act creating it must be held to be referable to, and must be interpreted in the light of, Chapter III. of the Constitution.

It remains to consider whether sec. 12 of the Act and the appoint- ment of the President thereunder are within the legislative powers of the Commonwealth. If they are not so, the Constitution of the Court is wholly beyond the powers of the Parliament, and the award is invalid and not enforceable. Sec. 12 (1) of the Act is set out above. It is a consequence of secs. 71 and 72 of the Constitution that a person substantively appointed as President of this Court, which is a Federal Court created by the Parliament, must hold office on the terms laid down in sec. 72. If it were not required that the President should be appointed from among the Justices of the High Court, and if he were not in fact one of those Justices, it would be clear that the appointment would be invalid. For sub-sec. II. of that section is SO framed as to confer a life tenure, subject only to an address from both Houses of Parliament, passed in the same session and grounded on proved misbehaviour or incapacity. Unless upon such proof and the consequent address, he "shall not be removed." Words could not more clearly indicate that unless such an address is adopted he is entitled to hold office SO long as he lives. It was indeed argued that a tenure for any defined period, however brief, was compatible with the provision. That view is, I think, completely untenable. There are no words indicating power to limit the tenure in that manner, and, having regard to the whole scheme of Chapter III. and to the fact that an appointment during good behaviour without more has always been construed as being for life, subject to that condition, unless it is coupled with an express limitation of tenure in point of time, I do not think that the argument

25 CLR 458

necessitates extended discussion. See Harcourt v. Fox 1, judgment of Holt C.J. 2, where the appointment during good behaviour was that of a clerk of the peace.

The real argument in favour of the appointment is contained in the judgment of the learned Chief Justice of this Court, and it is that as the President, appointed "from among the Justices of the High Court," already holds judicial office during good behaviour. and as the word appointed" does not necessarily mean appointed to a substantive office, and may be read as "assigned," and more- over as it is not expressed that the President is to be appointed for any definite term, but that he shall be "entitled to hold office for a period of seven years, the provision in sec. 12 (1) of the Arbitration Act is not in violation of the requirement of the Constitution. His Honor further points out that the meaning of the word appoint may, and indeed must, be controlled by the subject matter and the context. I should be glad indeed if I could agree with this construc- tion. The gravest consideration is due to a view expressed by so eminent a Judge, and I should be disposed to agree with it if I could, not only because it is his view but because of the seriousness of the consequences which would follow, if the view which I hold were adopted. If this Court adjudges that the terms of the appointment are not beyond the powers of the Parliament and that the appoint- ment as made by the Executive is valid, that result will be far from a disappointment to me. At the same time I am bound to form and express my opinion to the best of my ability, and without regard to consequences. In the first place I agree that the word "appointed" must be controlled by the subject matter and the context. But the subject matter must be that of the Act itself, and not merely that of the section; and similarly as to the context.

It is first relevant to consider what the word "appointed means as used in the Constitution, for there is no power to appoint save in the sense which the Constitution attaches to that word. It is true that covering sec. III. uses the same word, but only in reference to the "appointing" of a day on which the Federal Union was to be proclaimed by the Queen. So also in sec. IV. Neither of these sections has to do with appointments to offices. Coming to Chapter

11 Show., 426 : 506. 21 Show., at pp. 527 et seqq. 25 CLR 459

1., sec. 2 provides for the representation of the Sovereign by " a OF Governor-General appointed by the Queen." That is appointment to an office. Sec. 4 refers to such person as the Queen `may WATERSIDE appoint to administer the Government of the Commonwealth "; FEDERATION that is to say, appoint as administrator. Sec. 5 uses the word again, but only with reference to times. Sec. 15 again uses the word "appoint" with regard to a person, namely, a person to hold the place of a senator whose place is vacated when the Parliament of the State is not in session. In this section there is a second use of the word 'appointed " in reference to the position of senator. Passing to Chapter II., which deals with the Executive Government, sec. 64 gives power to the Governor-General to "appoint" officers to the Departments of State. Sec. 67 vests the "appointment" of all other officers of the Executive Government in the Governor- General in Council, save where the appointment is delegated to some other authority. Then we have Chapter III., relating to the Judicature. By sec. 72 the Justices of the High Court and of the created Federal Courts are to be "appointed" by the Governor- General in Council. That is the only instance of the use of that term in the Chapter, but it relates to the appointment of the head of such a Court as the Arbitration Court. In Chapter IV. (Finance and Trade) the word "appointed" is used twice, namely, in the second paragraph of sec. 84, referring to the appointment to some other office of an officer of a transferred Department not retained in the service of the Commonwealth, and in sec. 103, which (sub-sec. 1.) provides that the members of the Inter-State Commission shall be "appointed" by the Governor-General in Council. The word does not occur in Chapter v. (The States), nor does it occur in Chapter VI. (New States). In Chapter VII. (Miscellaneous) it occurs once, By sec. 126 the Sovereign may authorize the Governor-General to "appoint" a deputy or deputies within any part of the Common- wealth. It also uses the word " assign " thus "such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies." There is also a later reference in the same section to "the appointment of such deputy or deputies." I think

I have mentioned all the instances of the use of the three words "appoint," appointed and "appointment" in the Constitution.

25 CLR 460

And it will be seen that, with the exception of two instances in which

it refers to the fixing of a time, it refers in all cases to the conferring of offices, places, or other positions, upon persons; and it uses the word

FEDERATION " ' assign only twice, and then with respect only to powers and

functions. It is apparent that when the Constitution uses any of the three words with reference to a person, it means that the appoint-

ALEXANDER ment is substantive and distinct. Still more clearly is it SO in sec.

72, and that section must be followed in conferring his office on the head of a created Federal Court.

The second question is: " Is the award invalid by reason of the appointment of the President for seven years only ? "

It was contended that all the acts done by the Court since its establishment in 1904 were invalid on the ground that the President was only appointed for seven years instead of for "during good behaviour," because (1) the Court established by the Act was a Federal Court of judicature established under sec. 71, exercising judicial power, and (2) sec. 72 of the Constitution only authorized the appointment of persons exercising any of the judicial powers of the Commonwealth who are removable only after an address of both Houses of Parliament on the ground of proved misbehaviour or incapacity.

It was contended by counsel for the organization, and for the Commonwealth, that sec. 72 of the Constitution did not require appointments of Justices of the High Court or Judges of other Courts to be made "during good behaviour," but that they could be made for any term the Governor in Council thought fit-for a month, a year, or seven years and, therefore, that the appointment of the President, even if the Commonwealth Court of Conciliation and Arbitration is regarded as a Court of judicature, was authorized by the Constitu- tion and by the Act. I cannot agree with that contention, or that at present Justices of any Federal Court vested with judicial powers of a Court can be appointed, except in accordance with sec. 72, namely. subject to removal only after an address of both Houses of Parlia- ment on the ground of proved misbehaviour or incapacity.

The disadvantage of that interpretation being placed on the Constitution was pointed out especially in connection with inferior Courts, but judicial power is the same in all Courts and this Court

25 CLR 487

is not, I think, justified in amending the Constitution-only in interpreting it as it stands. For nearly eighteen years the condition mentioned has not caused any inconvenience, because the Federal jurisdiction has been vested in the State Courts in accordance with sec. 71 of the Constitution. When that is found inconvenient or impracticable-if it ever is-the Constitution can be amended in the way provided by the Constitution-not by this Court.

Counsel for the Commonwealth also contended that sec. 71 should be read as if the Imperial Parliament had said in sec. 72: Justices of the High Court and (Justices) of other Courts (not Justices of the High Court), &. It was claimed that, if the section were read in that way, Justices of the High Court could be assigned judicial work in other Courts without appointment under sec. 72 of the Constitu- tion, and for any term, and on that ground the assignment of the work in question to the President, as a Justice of the High Court, for seven years was valid. I do not agree with the suggested constructions of the section, or that it would have the effect contended if the words mentioned had been inserted in the section. An "appointment" to a new Court would still have to be made, and then only in accordance with the Constitution.

The other point mentioned was that the appointment under the Act was more of an assignment of additional judicial work to a Justice of the High Court duly appointed under sec. 72 of the Constitution, than an appointment of the President as a Judge of a new Federal Court. Looking at sec. 72 and the words used in that section, and in sec. 12 of the Commonwealth Conciliation and Arbitra- tion Act, in which the same words are used, I can only come to the conclusion that the appointment of the President as President of the Court was a real one in the sense of the term used in the Constitution. It was said that the word appointed" in sec. 12 could be taken to mean "selected" or something else that Parliament did not say, and not an appointment to an office in the ordinary meaning of the word. The selection under the Act was to be from a class, it is true, namely, "from among the Justices of the High Court " but no Justice of the High Court could, under the Act, even after one has been selected for the office and the work assigned to him, exercise any of the powers vested in a President by the Act until he was duly

25 CLR 488

H. appointed as President of the Court, or until he took his new oath of

office after his appointment in the form set out in the Schedule to the Act. Further, it is stated in the special case submitted to the Court, as a fact, that the President was appointed for a term of seven years only.

I agree with my learned brothers Barton, Isaacs and Rich that if the Act is not severable the appointment of a President for seven years only, to preside over a Federal Court of judicature established by Parliament, would be contrary to sec. 72 of the Constitution, and invalid but, as I hold that the Act is severable and valid SO far as it vests arbitral powers, set out in the Act, in the President, the appointment of the President for seven years only does not invalidate the award. Sec. 72 deals only with the tenure of Justices of a Court of justice, not with Presidents of an Arbitration Court with arbitral powers only, granted under pl. XXXV. of sec. 51.

It was argued that the President, as a Justice of the High Court, could not be appointed to any position not a Court of judicature because of the provisions of sec. 8 of the Judiciary Act 1903. The section reads: A Justice of the High Court shall not be capable of accepting or holding any other office or any other place of profit within the Commonwealth, except any such judicial office as may be con- ferred upon him by or under any law of the Commonwealth.' The Judiciary Act was assented to on 25th August 1903. The Commonwealth Conciliation and Arbitration Act was assented to nearly sixteen months later, namely, on 15th December 1904. Parliament by that Act expressly authorized the Governor in Council to appoint a Justice of the High Court as President of the Commonwealth Conciliation and Arbitration Court, and expressly declared that he was entitled to hold office for seven years. The unusual words "he shall be entitled to hold office," &., may have been inserted because of the general restriction in sec. 8 of the Judiciary Act, and because Parliament recognized that it was not a judicial office but only the office of an arbitrator. The words would have been unnecessary if it were assumed to be a judicial office, for the Judiciary Act made provision for other judicial offices being conferred on Justices of the High Court by Commonwealth Acts.

The answer to question 2 should be No.

25 CLR 489

The third question is "Is the award enforceable by the said H. Court I do not think it is, because the judicial power to enforce awards could not be granted under pl. XXXV. of sec. 51 of the Con- stitution, and could only be granted to a Court of justice created under sec. 71 of the Constitution and to a Justice appointed in accordance with sec. 72. The President has not been appointed in accordance with that section. The answer should be No.

I do not think that Parliament intended to create a Court in the ordinary sense of the word, but only to give power to a President to prevent and settle disputes by conciliation and arbitration, and there- fore did not appoint him as President during good behaviour," but for seven years. The awards made by the President can be enforced in State Courts, and there is not any reason why Parliament could not give to the High Court, if it thinks fit, power to enforce arbitra- tion awards made by the President or Deputy President. The President or Deputy President could then, as a High Court Justice, enforce the awards if Parliament thinks fit to give that authority.

A doubt was raised during the argument as to whether State Courts can enforce awards if the Commonwealth Court of Conciliation and Arbitration is held to be unable to do so, because of the words which appear in sec. 44 of the Act, namely, " which the Court has power to impose." It is said the only power given to the State Courts is to impose penalties which the Commonwealth Court of Conciliation and Arbitration can impose, and if it is held that that Court cannot impose penalties a State Court cannot do SO. It not necessary to decide that question, but it might very well be held that the words in sec. 44 are only used as a concise description of the class of penalties or orders that can be enforced by State Courts. The omission of the words in question by an amendment of the Act would clear away the doubt. As awards of the Court are to be enforced by the parties or by Federal Courts in all parts of Australia, Parliament recognized that the assistance of State Courts to enforce them was necessary, and for that reason, I presume, passed sec. 44.

I hold that the following answers should be given to the questions submitted to the Court -Question 1 (a)-No. Question 1 (b) -Yes, unless the President is properly appointed under sec. 72 of

25 CLR 490

the Constitution, and not for seven years only. Question 2-No.

Question 3-No.

Questions answered as follows -1 (a) No.

(b) Yes. 2 No. 3 No. Solicitors for the applicants, Farlow &Barker. Solicitors for the respondents, Sly &Russell, Sydney, by Hedder wick, Fookes &Alston.

Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[HIGH COURT OF AUSTRALIA.]

THE CROWN

RESPONDENT, DRAGE

ON APPEAL FROM THE SUPREME COURT OF Industries Assistance-Advances to settlers-Advance in respect of leased land-

Applicant also owner of freehold landUnauthorized advance-Cro distrained and sold by landlord-Purchase by agent of Government-Refusal by Crown to PERTH,

pay for crop-Property in crop-Charge on crop of settler-Industries Assistance Oct. 14, 15,

Act 1915 (W.A.) (No. 27 of 1915), secs. 9, 10, 12, 15-Industries Assistance Act Amendment Act 1915 (W.A.) (No. 52 of 1915), sec. 3-Industries Assistance Act Amendment Act 1917 (W.A.) (No. 16 of 1917), secs. 4, 5, 6, 8, 11-Wheat