Waterside Workers' Federation of Australia v J W Alexander Ltd

The High Court of Australia considered a case stated by the President of the Commonwealth Court of Conciliation and Arbitration concerning the validity of the *Commonwealth Conciliation and Arbitration Act 1904-1915*. The dispute arose when J. W. Alexander Ltd. objected to the jurisdiction of the Court to impose a penalty for breach of an award, arguing that the Act was beyond the powers of the Commonwealth Parliament, specifically due to the tenure of the President of the Court.

The central legal issues before the High Court were whether the constitution of the Commonwealth Court of Conciliation and Arbitration was beyond the powers of the Commonwealth Parliament, particularly concerning its arbitral and enforcing provisions, and whether the award was invalid or unenforceable due to the President's appointment for a term of seven years rather than for life. This involved interpreting sections 51(xxxv), 71, and 72 of the *Constitution*.

A majority of the High Court (Griffith C.J., Barton, Isaacs, Powers, and Rich JJ.) held that section 72 of the *Constitution* mandates that Justices of the High Court and of any other Court created by the Parliament must be appointed for life, subject to removal. They further determined that the power conferred on the Commonwealth Court of Conciliation and Arbitration to enforce its awards constituted "the judicial power of the Commonwealth" and could only be vested in the courts specified in section 71. Consequently, the provision in section 12(1) of the *Commonwealth Conciliation and Arbitration Act* appointing the President for a term of seven years was found to be at variance with section 72, rendering the provisions conferring enforcement powers invalid. However, a majority (Isaacs, Higgins, Powers, and Rich JJ.) also held that these invalid enforcement provisions were severable from the rest of the Act, meaning the remainder of the Act remained valid.