HIGH COURT OF AUSTRALIA

                                  Waterside Workers' Federation of Australia

                                                           Vs.

                                              J. W. Alexander Limited

                (Griffith C.J., Barton, Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.)

                                                 27 September 1918

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 Commonwealth, and in particular as
to (a) the arbitral provisions; (b) the enforcing provisions?" 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 considered in determining their meaning.

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

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
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 legislative 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 effect is, in any view, conclusive as
to the existence of the right 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 community, 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 subsequent
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 incidentally, to the judicial power. It is not disputed that convictions for offences
and the imposition of penalties and punishments 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 obligation 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.

The Court was thus invested, uno flatu, with ample and complete 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 Magistrates' 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 of 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 Parliament, 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 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 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 necessarily 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 application. Whether the epithet "arbitral" may or may
not be properly 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
argument.

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 Justices
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 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 is conferred upon him, and there is
nothing in the words used to suggest that any new or additional personal right or advantage is to be
given him. On the contrary, the suggested words of limitation 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
President, a single person, is validly appointed for some of its purposes and not appointed for the
others. In my opinion, his appointment if bad in part is bad altogether. To hold otherwise is to make,
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 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?" 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 Arbitration. During the hearing of an industrial dispute under the Arbitration 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:--"(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 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 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
Parliament 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 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 examining the nature of "judicial power" he
gives it the following definition (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 themselves 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. "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, 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
contention. 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 by one person against another and grants it to him as a right against
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 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 subsequent
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 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 (j) 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 (l) 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 Legislature 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 kind of controversy, and the term "settlement by award" is another 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 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 application 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 the term "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 "a
writ of mandamus or prohibition or an injunction" in sec. 75 (V.) of the Constitution, and looking
also 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 Legislature 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," &c. 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
Arbitration 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 enforcing provisions. As to both, the granted powers are compulsory.
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 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 appointment 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 necessitates extended discussion. See Harcourt v. Fox[2],
judgment of Holt C.J.[3], 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 moreover 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 construction. 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 appointment 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 I., sec. 2 provides for the representation
of the Sovereign by "a Governor-General appointed by the Queen." That is appointment to an
office. Sec. 4 refers to such person as the Queen "may appoint to administer the Government of the
Commonwealth"; 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. I.) 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 Commonwealth. 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. 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 "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 appointment 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.

I turn now to the Arbitration Act itself.

The subject matter of the whole Act is the dealing with conciliation and arbitration by means of a
Court. Not only is the tribunal given the attributes of a Court, but it can only be a Federal Court
within the meaning of Chapter III. of the Constitution. In these respects I am at one with the learned
Chief Justice. But though it is the subject matter of the Act which must control, it is none the less
necessary that the appointment of the head of this Court as a created Federal Court must conform to
the requirements of the judicature provisions of the Constitution. The subject matter of sec. 12 of
the Act is I submit, not enough to look at. What kind of tenure does this Court, created under the
authority of the Constitution, need, as a Court so created, for its head? It needs that the head be
appointed in the sense of sec. 72, and the substitution of "assigned" for "appointed" in sec. 12 of the
Act, if it could be made, does not alter that need. Indeed it may be that if the word "assigned" had
been used, it would, to bring the case within the Constitution, have to be read as "appointed."

Let us turn to the context of the Act. There is the use in secs. 14 and 14A of the word to denote
appointment to the office of deputy. It occurs in sec. 35 (1) in the phrase "appoint two assessors."
Sec. 40A gives the Court power by award or order to "appoint" or give power to appoint a Board of
Reference, and goes on to assign to the board certain functions. By sec. 51 the Governor-General
may (c) "appoint an Industrial Registrar and Deputy Industrial Registrars." By sec. 82, nothing in
the Act is to require any Judge of the Supreme Court of a State "to accept any appointment under
this Act," and no such appointment is to be made without the approval of the State Governor.

It will be seen that throughout the Act there is no instance of the use of either of the words "appoint"
or "appointment" except in the ordinary sense in regard to the conferring of offices. The real
criterion is the sense in which the Constitution, with and subject to which the Act must be read, uses
the word "appointed" as applied to offices or positions. There the sense is always the same, but the
point most material is that it is used in sec. 72 with reference to the appointment of the head of a
created Federal Court. As the President is evidently intended to be that head, he must be appointed
in the sense which the Constitution requires in sec. 72, and that section requires a substantive
appointment.

Without saying that by the Constitution the President must not be also a Judge of the High Court, it
is necessary that he should hold office by the tenure prescribed in sec. 72, and that whether or not he
has also the functions of a Judge of the High Court, who cannot, in the Arbitration Court, exercise
the functions of a Judge of the High Court. If the Act required the personages to be identical, it
would not be thereby relieved of the necessity of conformity to the Constitution. That necessity
cannot be evaded by "selecting" the President from among the Justices of the High Court. I use the
word "selecting" because his Honor has thought it may be equivalent to "appointing." But I have
always understood that the process of selection is commonly involved as a preliminary to an
appointment.

I see no difficulty in the words "entitled to hold office." They merely mean that the person is at
liberty to resign his office within the period limited. In whatever way sec. 12 (1) may be read, it
must conform to the requirements of the Constitution. That is the condition which cannot be
escaped. It must, I think, be conceded to it that it uses the word "appointed" in the sense employed
in sec. 72. It may also be conceded that much of its phraseology resembles portions of sec. 72. But
it cannot be conceded that the Constitution ever intended or allowed that the head of a created
Court--the "Justice" of it, to use the word employed--should perform the duties attached to that
office except upon the tenure and under the terms prescribed by the fundamental law. That law
clearly did not intend that such a judicial officer should be limited in his term of office to seven
years. It is to be remarked that the Arbitration Act sets forth in a schedule an oath which the
President is to take upon his appointment.

To conclude, I do not separate the provisions of the Act, as I cannot, in reason, sever what are called
the "arbitral" from the enforcing provisions, and must therefore look upon the Act as one legislative
fabric in its substance. So thinking, I answer the whole of question 1 in the affirmative, question 2
in the same way, and question 3 in the negative.

Isaacs and Rich JJ.

1.--In our opinion the Constitution of the Commonwealth Court of Conciliation and Arbitration is
not beyond the powers of the Parliament of the Commonwealth so far as relates to the arbitral
provisions of the Act.

The power conferred by sec. 51 (XXXV.) of the Constitution, like every other power, is complete in
itself. But like every other power granted, it needs its own interpretation in order to find the nature
and extent of the subject matter. Pl. XXXV. does not give power in general terms to the
Commonwealth Parliament to legislate with respect to industrial disputes beyond the limits of the
State. The power is limited to legislation with respect to a particular method of dealing with such
disputes. The method so specified is "conciliation and arbitration." The reason of the limitation is on
the surface. Industrial disputes extending beyond the limits of any one State embrace so many
possible divergencies, of industry, of conditions, of claims, of surrounding circumstances at home
and abroad, and of constant changes, that direct legislation in advance is incapable of being applied
to them. No one can foresee for any appreciable period the legislative requirements of industrial
peace in any one industry, much less in all industries of the Commonwealth which are common to
more than one State. Any attempt at detailed regulation, applicable to all industries even if suitable
to-day--practically an impossible hypothesis,--would certainly be less suitable a month hence.
Nevertheless, it was thought necessary that such disputes should not go uncontrolled but that the
control should be exercised only by means of conciliation and arbitration. That is essentially
different from the judicial power. Both of them rest for their ultimate validity and efficacy on the
legislative power. Both presuppose a dispute, and a hearing or investigation, and a decision. But the
essential difference is that the judicial power is concerned with the ascertainment, declaration and
enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the
moment the proceedings are instituted; whereas the function of the arbitral power in relation to
industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator
ought to be the respective rights and liabilities of the parties in relation to each other.

An industrial dispute is a claim by one of the disputants that existing relations should be altered, and
by the other that the claim should not be conceded. It is therefore a claim for new rights. And the
duty of the arbitrator is to determine whether the new rights ought to be conceded in whole or in
part. His opinion may take any form the law provides; it may be called an order, or an award. But
his declaration of opinion does not make it law. He does not legislate. It is always the Statute which
gives the arbitrator's opinion efficacy, and stamps his decision with the character of a legal right or
obligation. Parliament legislates, but is compelled by the Constitution to legislate in that way. It
cannot form an à priori code, and say that shall be obeyed by disputants. A particular method that
other Parliaments may adopt, it must adopt if it legislates at all. It can say, and has said, that an
arbitrator shall have power to inquire into the circumstances of each particular dispute, and say what
in his opinion ought to be their respective rights and liabilities with respect to the matters in dispute,
and that when so declared those shall be their mutual rights and liabilities. That process is very
common in legislation. Instances are numerous; and as prominent illustrations, because judicially
considered, we may refer to Powell v. Apollo Candle Co.[4], R. v. Burah[5], and, in America, to
Prentis v. Atlantic Coast Line[6], Knoxville v. Knoxville Water Co.[7]. The two last mentioned cases
are sufficiently extracted in Australian Boot Trade Employees Federation v. Whybrow & Co.[8],
where the present subject is dealt with. A later case, Louisville Railroad Co. v. Garrett[9], follows
them both.

It is evident that when the matter has reached that point it stands precisely in the same position as a
valid Act enacting the identical mutual rights and liabilities. They exist, and are expected to be
observed. Their creation is not the ordinary work of a Court of law. In the New South Wales Report
of the Commission on Strikes 1891 (p. 34, par. 28) it is said:--"It should be remembered that a
Court of arbitration is not like an ordinary Court of law. There is no fixed code of law which it
interprets, and its decision is only a declaratory statement as to what it thinks just and expedient." It
will be noticed in that extract that a "Court of arbitration" as distinct from "Court of law" is spoken
of as a well known tribunal. The fact that the arbitration is involuntary makes no difference. For
instance, see the various Arbitration Acts referred to in R. v. Commonwealth Court of Conciliation
and Arbitration; Ex parte Why brow[10].

A Court of law has no power to give effect to any but rights recognized by law. In Blackburn v.
Vigors[11] Lord Macnaghten observed: "I apprehend that it is not the function of a Court of justice
to enforce or give effect to moral obligations which do not carry with them legal or equitable
rights." In the Ruabon Steamship Co. v. London Assurance[12] Lord Halsbury L.C. said: "It seems
to me a very formidable proposition indeed to say that any Court has a right to enforce what may
seem to them to be just, apart from common law or Statute." So per Lord Loreburn L.C. in Dewar v.
Goodman[13].

The two functions therefore are quite distinct. The arbitral function is ancillary to the legislative
function, and provides the factum upon which the law operates to create the right or duty. The
judicial function is an entirely separate branch, and first ascertains whether the alleged right or duty
exists in law, and, if it binds it, then proceeds if necessary to enforce the law. Not only are they
different powers, but they spring from different sources in the Constitution. The arbitral power
arises under sec. 51 (XXXV.); the judicial power under sec. 71. The latter section contains, in the
words "such other Federal Courts as the Parliament creates," the implied grant of power to create
Courts other than the High Court. There is no other grant of that power in the Constitution--except
as to territories (sec. 122). The two powers being distinct and separate in nature and origin, it
follows that, when an award is once made, the dispute is settled and the arbitral function is at an
end. Variation of the award is, of course, an act of the same nature. And when the award is made
and the right established, the law presumes the parties will obey it. Enforcement by a Court is an
entirely separate matter. It arises on breach or threatened breach. But that is the case with every
right. A right of property or a contractual right may exist, and, if violated, the law provides for its
enforcement. But breach is not presumed. It follows that enforcement is in its nature an entirely
separate process from the creation of the right.

But it happens that in the Act both processes are provided for. And it is urged (1) that Parliament
has made it a sine quâ non that the organ to arbitrate and to enforce shall be a Court of law; (2) that
a Court of law can only be created provided the Justice has a life tenure under sec. 72; (3) that
Parliament by sec. 12 of the Act openly violated sec. 72 of the Constitution, and so enforcement is
unlawful; (4) that Parliament has bound up arbitration and enforcement inseparably, and therefore
the whole Act is futile. The mere statement of the chain of reasoning compels the admission that, on
the basis contended for, Parliament must have deliberately set to work to destroy the fabric it
professed to create. We are unable so to read the legislation.

It is a cardinal rule of construction that all documents are to be construed ut res valeat magis quam
pereat (per James L.J. in In re Florence Land and Public Works Co.; Ex parte Moor[14]). That is "a
rule of common law and common sense" (per Lord Brougham L.C. in Langston v. Langston[15]).
More cogent is that rule when we are considering whether the work of Parliament representing the
will of the whole people shall be undone. And still more cogent is the rule when that work has been
so acted on, as in the present case, that many thousands of men and women are to-day pursuing their
occupations on the faith of it, and industries all over the Commonwealth, whose progress was
threatened, are carrying on in reliance on the awards of the Court the operations necessary for the
service, the comfort and even the existence of the nation. So far from finding any ground for
annihilating the Statute and everything that has been done under it, we think it plainly good as to the
arbitral portion of it.

The simple fact is that when the Parliament legislated in 1904, it had various State models before it.
There were the following Acts in existence: The New Zealand Act 1900 (No. 51) (see secs. 59 and
64); the Western Australian Act 1900 (No. 20) (see secs. 53 and 55), and the New South Wales Act
1901 (No. 59) (see secs. 16, 17 and 18). From examination of the Commonwealth Act and those
Acts--not only the sections which relate to the constitution of the Court of Arbitration, but also
other sections--it becomes evident that those Acts, passed by the State Parliaments as Acts for
conciliation and arbitration in industrial disputes, were taken by the Commonwealth Parliament as
guides in framing its own enactment on the same subject. The Court, the limited tenure of its
presiding officer and the enforcement provisions were all apparently part of the same subject matter.
That "conciliation and arbitration" were regarded by Parliament as the primary and dominating
object and that "enforcement" was not regarded as a main or essential object can be seen by an
inspection of sec. 2 of the Act. Enforcement of awards is not even mentioned in that section. It is
included in the Act, but in a separate and distinct part.

That a Court of law was not intended by sec. 11 is shown conclusively (1) by the fact that the Court
is described as a Court of Conciliation and Arbitration, the functions of which are incompatible with
a Court of law; (2) by the fact that sec. 12, framed with a knowledge of the respective sections in
the Constitution as to tenure--sec. 72 for Judges and sec. 103 for members of the Inter-State
Commission--took the latter as the model. It is incredible that, knowing the requirements of sec. 72
and knowing--as is clear in the Judiciary Act--that when a Judge is provided for a Court of law,
there is no need to repeat the words of the Constitution and that it is suicidal to attempt to alter
them, Parliament would have passed sec. 12 had it intended to make the Arbitration Court a Court
of law.
It is said that the phrase "Court of record" is conclusive. But the context, Court of Conciliation and
Arbitration, combined with sec. 12, shows that "Court of record" is not conclusive. The two State
Acts last quoted made the Courts "Courts of record," but their membership and functions made it
clear they are not Courts of law. Power to fine and imprison may well be given to maintain authority
as arbitrators. Besides, "Court of record" is sometimes used for purposes other than to enable the
Court to be an ordinary Court of law. See, for instance, in Fielding v. Thomas[16], where it appears
that the Houses of Legislature called themselves by Statute "Courts of record" though, as the Privy
Council held, that did not mean Courts of record in the ordinary sense (see p. 612). If it had so
meant, it would have been ultra vires.

The arbitral part of the Act, therefore, is quite within the power of pl. XXXV., and is not intended
by the Act to be exercised by an ordinary Court of justice, which, it is suggested, Parliament by
some strange perversity proceeded to destroy at birth. It is true that enforcement provisions are
found: three sub-paragraphs in sec. 38--one of them by amendment--and the rest in Part IV. But all
this was in imitation of the State Acts of Arbitration, and not in reliance on the Judicature Chapter
of the Federal Constitution. The arbitral portion of the Act is, in our opinion, perfectly good,
subject to its severability from any other portion which may be bad.

2.--The Enforcement Provisions.--As already pointed out, it was the intention of the Parliament to
allow the Arbitration Court to discharge the diverse functions of creating and of enforcing industrial
rights, in analogy to the State enactments on the same subject. But the Federal Constitution is
specific that judicial power shall be vested in Courts, that is, Courts of law in the strict sense. (See
per Fry L.J. in Royal Aquarium &c. Society Ltd. v. Parkinson[17].) And it also requires those Courts
to be constituted by "Justices"--which means simply the Judges of the Federal Courts--whose
tenure and salary rights are governed by the provisions of sec. 72. That section is distinct. The
Justices are to be "appointed by the Governor-General." That is the only function of the Governor-
General in relation to the matter. Assuming the existence of a Court, and the Parliamentary creation
of a certain number of offices of Justice of that Court of named qualification if Parliament thinks fit,
and the Parliamentary fixation of salary, all that remains to be done is to appoint, that is, nominate,
the occupant of the office. When the Governor-General has done that, the office is filled by the
person so appointed or nominated. If Parliament so enacts, the nomination must be by commission.
Once the office is filled, if no statutory provision were made, the common law would say that the
appointment was at pleasure (Gould v. Stuart[18]), and the Judge could be displaced, or removed as
it is said, at the will of the Executive. If any competent Statute says differently, that Statute must be
obeyed. Here the law of the Constitution, inalterable by Parliament or otherwise than as the
Constitution itself provides (unless, of course, the Imperial Parliament intervenes), declares
explicitly and in negative terms--which fact differentiates sec. 72 from corresponding enactments
elsewhere--that a Justice so appointed shall not be "removed" except by the Governor-General, and
then only in a certain way, for certain reasons proved to exist. "Removed" means "displaced," that
is, put out of his "place." "Remove" and "displace" are used in this sense interchangeably. For an
early instance see clause 21 of the Royal Instructions to Governor Murray of Quebec (7th December
1763) which was in these terms: "You shall not displace any of the Judges, Justices of Peace, or
other Officers or Ministers, without good and sufficient cause, which You shall signify in the fullest
and most distinct manner to Our Commissioners for Trade and Plantations, in order to be laid before
Us, by the first Opportunity after such Removals" (Egerton and Grant on Canadian Constitutional
Development, p. 10).

"Appointed," when the whole section is read together, does not include "pleasure" either of Crown
or Parliament, for that would give no effect to sub-sec. II. And if "pleasure" is excluded, what is the
true meaning of sub-sec. I.? Surely not for as long as the Governor-General pleases in any particular
case. If Parliament may fix a term it may fix any term it chooses, as, for instance, until the Houses
or either of them shall present an address expressing want of confidence in the Justice, irrespective
of misbehaviour. This, of course, would nullify the second clause.

It follows that any law passed under sec. 71 which says that a Justice so appointed shall be displaced
or removed from his office in seven years--which is what sec. 12 of the Arbitration Act says--is
contrary to the Constitution, and pro tanto invalid. If that invalidity carries with it inability to
exercise the judicial power of the Commonwealth, any enactment purporting to authorize him to do
so is invalid.

An argument ab inconvenienti was urged. It was this: The Commonwealth might wish to create
inferior Courts, and it would be seriously impeded if all the Justices were necessarily to have a life
tenure. There are several answers:--First, whatever the inconvenience to which the power of
creating Courts other than the High Court (for the Constitution itself creates the High Court, leaving
Parliament the mandate of completing its organization) is subject, the conditions of sec. 72 and the
words of sec. 72 are precise. Secondly, there is no real inconvenience, because under the power of
investing State Courts with jurisdiction all the existing inferior Courts of Australia can be utilized.
Thirdly, the Constitution does not look to the creation of Courts which, though subordinate to this
Court, are of such calibre as to be officered by Judges whose tenure is of little importance. Fourthly,
the suggestion overlooks the fact that sec. 72 is one of the strongest guarantees in the Constitution
for the security of the States. The Constitution places by sec. 74 the whole fate of the State
Constitutions, where they compete with the Federal Constitution, in the hands of the High Court.
That Court's decision in such a question is final, unless in the exercise of its discretion it grants a
certificate permitting an appeal to His Majesty in Council.

It is plain that the independence of the tribunal would be seriously weakened if the Commonwealth
Parliament could fix any less permanent tenure than for life, subject to proved misbehaviour or
incapacity. It is not like the case of a unitary Parliament having one interest only to consider,
namely, the one territory. It is the case of a Federation, where the central legislative and executive
bodies are largely competitive with, and in a sense adverse to, the State authorities. On the whole,
the suggested inconvenience sinks into insignificance when the greater considerations are borne in
mind.

The enforcement provisions are we think invalid.

3.--Separability.--Are the enforcement provisions distinct and severable from the arbitral
provisions so as to enable us to save the latter? On the principle already referred to of preserving as
much of the will of Parliament as is possible, we feel no hesitation in upholding the arbitral clauses.
The enforcement clauses are not put in as a condition of or compensation for the arbitral power. The
arbitral power is not made dependent on the enforcement clauses. We cannot say that it appears to
us from an examination of the Act that the two are so bound up that the first set of provisions would
not have been enacted unless the latter were. (See Shaw C.J. in Warren v. Charleston
Corporation[19].)

The main object of the Act is to obtain an award and settle the dispute. The force of public opinion
is very strong in itself as a means of inducing persons whose dispute has been passed upon to adhere
to the decision. That, in many countries, is still the only sanction. But here, striking out the
enforcing powers of the Court there is still left so much of sec. 44 as relates to the Courts of
summary jurisdiction with regard to penalties. It is suggested that in sec. 44 the words "any
penalties which the Court has power to impose" mean that, if it be found the Court is invalidly
invested with the power to impose the penalties referred to, the Courts of summary jurisdiction are
not to be so invested. We do not so read the words. It cannot be denied that it is not impossible to
read them so, but we consider that such a reading is less reasonable and less consonant with the
scheme of the Act than another reading which we shall state. In the known circumstances that the
Court sits in one place usually and, except for a Deputy, sits at only one place at a time, and that
breach of an award may take place thousands of miles away, sec. 44 was designed to utilize the
services of State Courts where the Court itself could not act, or could not effectively or conveniently
act. Their jurisdiction was to provide for the Court not acting. Surely, then, the suggestion that if the
Court could not act at all the State Courts could not act at all, is far from reasonable. We read the
words in this way:--Sec. 38, sub-sec. (d), provides that the Court shall have power "to impose
penalties, not exceeding the maximum penalties fixed (or, if maximum penalties have not been
fixed, not exceeding the maximum penalties which could have been fixed) under the last preceding
paragraph, for any breach or non-observance of any term of an order or award proved to the
satisfaction of the Court to have been committed." Those are the penalties referred to
compendiously in sec. 44 as "penalties which the Court has power to impose." The Legislature was
not thinking of the possibility of the power of the Court being unlawfully given; and, therefore, it
was not making the lawfulness of that power a condition. The words incorporate by reference.
Consequently, there remains--if that were necessary--a very important means of enforcement by
Courts of summary jurisdiction; and none of the more serious processes of coercion have ever been
found necessary yet.

Again, even if no specific enforcement were provided, it seems the common law would probably
supply the defect. Disregard of the command of the Statute would be a wrongful act, and any
member of the class for whose especial benefit the right is created has a right to enforce it. "So, in
every case, where a Statute enacts, or prohibits a thing for the benefit of a person, he shall have a
remedy upon the same Statute for the thing enacted for his advantage, or for the recompence of a
wrong done to him contrary to the said law. Per Holt C.J.16 Mod., 26, at p. 27." (Com. Dig., sub
Action upon Statute (F)). There are many modern cases illustrating this, as, for instance, Portsmouth
Corporation v. Smith[21].

We therefore answer questions 1 (a), 2 and 3 in the negative, and question 1 (b) in the affirmative.

Higgins J.

In pursuance of sec. 12 of the Act, the President has been appointed "during good behaviour for
seven years"; and it is urged that the appointment is invalid, the Court invalid, and all its awards
invalid, because the appointment is not for life.

The argument is that as the Arbitration Court is a Court "created by the Parliament," no appointment
is valid under the Constitution (sec. 72) unless it be for life.

Sec. 72 provides:--"The Justices of the High Court and of the other Courts created by the
Parliament--(i.) Shall be appointed by the Governor-General in Council: (ii.) 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 misbehaviour or incapacity:
(iii.) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be
diminished during their continuance in office." This section has to be interpreted on the same
common-sense principles as any other section, and without prepossessions as to what the section
means, or ought to mean.

The appointment must be made by the Governor-General, who exercises for the Crown the
executive power of the Commonwealth (Constitution, sec. 61), and the Crown, in appointing its
servants, judicial or ministerial, can appoint for such term as it pleases--whether at will or for life
or for years--unless so far as restrained by law. The section obviously operates as a restraint on the
Crown and on Parliament: does it prevent the Crown or Parliament from granting any tenure but a
tenure for life to Justices of any Court created by Parliament? If it does so prevent the Crown, then
the Parliament could not create a Court with Justices for some temporary purpose--e.g., to try all
offences and quarrels of interned aliens during the War.

Now, there is nothing said in the section expressly about life tenure. There is not one word in the
section that is not consistent with a tenure for seven years as much as with a tenure for life; but the
tenure, whatever it is, must be subject to two provisions: (1) that the person appointed is not to be
removed except on an address from both Houses of Parliament, praying for such removal on the
ground of proved misbehaviour and incapacity; (2) that Parliament is to fix the remuneration, and
the remuneration is not to be diminished during continuance in office. That the provision for
removal is consistent with a term of years, under the Constitution, is shown by sec. 103. This
provides, as to members of the Inter-State Commission, that they "shall hold office for seven years,
but may be removed within that time by the Governor-General in Council, on an address from both
Houses of the Parliament ... praying for such removal on the ground of proved misbehaviour or
incapacity."

The only condition that the Parliament imposes on the Crown as to appointment is that the
appointment shall be by commission (Judiciary Act, sec. 4).

The tenure which the commission purports to grant to the President is a tenure for seven years
defeasible during the term on an address from both Houses of Parliament, praying &c. What is there
in sec. 72 to forbid such a tenure for any Justices created by the Parliament?

The position is analogous to a lease of land for seven years, with a power of re-entry if the rent
should not be paid, or if waste should be committed. "When such a condition is inserted, the estate
of the tenant, whether for life or for years, becomes determinable on such re-entry" (Williams' Real
Property, 14th ed., p. 259).

Sec. 72 has to be contrasted with (1) the Act of Settlement (12 & 13 Will III. c. 3)--where the
commissions are to be quam diu se bene gesserint; but upon the address of both Houses it may be
lawful to remove a Judge: (2) the United States Constitution--where the Judges "shall hold their
offices during good behaviour" (art. III., sec. 1: (3) the Canadian Constitution--where the Judges
are to hold office during good behaviour; but they shall be removable by the Governor-General on
the address of both Houses. Similar words, as I understand, are found in the Constitution of all the
States of Australia, compelling expressly a tenure "during good behaviour"--that is to say, a tenure
for life conditional on good behaviour. Such words are not found in the Australian Constitution, and
it is impossible to believe that such words add nothing to the effect of the other Constitutions and of
the Act of Settlement.

"Removal" during a term is essentially different from leaving at the end of a term; and a power to
remove during a term on the address of both Houses for proved misbehaviour, &c., if conferred,
operates as a qualification of the term, whatever the term may be. The words used in sec. 72 do not
even confer a right of removal on an address of both Houses; they are in an unusual negative
form--"shall not be removed except" &c. They do not prevent a tenure for life without any power
to remove whatever. Sec. 72 does not grant a tenure, but operates to restrain, in some respects, the
nature of any grant. It seems to me, in short, that under sec. 72 of our Constitution there is nothing
to prevent a tenure for years, if Parliament (or the Government) so decide. A tenure at will is
incompatible with sec. 72; for no Justice is to be removed except on an address from both Houses
praying for removal on the ground of proved misbehaviour, &c.: but a tenure for years is not
incompatible. The Constitution, by sec. 72, does not make a life tenure imperative in all
appointments, but provides against that which is the greatest danger--the danger of an offended
Government removing a non-compliant Justice, or reducing his remuneration.

As against this view is urged the improbability that the Constitution would leave to the discretion of
the Parliament the question of the tenure--for years or for life--for Justices of the High Court as
well as for Justices of the other Courts created by Parliament. But it is equally improbable that in
any British community any Parliament would provide a tenure for years for Justices of such a Court
as the High Court. These arguments as to probabilities, however, must yield to the express words of
the Constitution.

So far as the tenure of the High Court Justices hitherto appointed, there is no tenure for years. They
hold office until an address from both Houses. The appointment (by commission under sec. 4 of the
Judiciary Act) is "to be a Justice of the High Court of Australia to have hold exercise and enjoy the
said office and the rights and privileges appertaining thereto subject to the Constitution aforesaid
and the laws of the Commonwealth." That is to say, they hold until an address from both Houses,
&c., and their remuneration is not to be diminished. In my opinion, such an appointment is an
appointment for life in the technical sense; for the habendum is for a "time incertaine." According to
Altham's Case[22], "If a man grants a rent (and goes no farther), these general words shall create an
estate for life, but if the habendum be for years, it shall qualify the general words." According to
Sheppard's Touchstone, p. 105--"If one give or grant land to another, to have and to hold ... to him
and his assigns, and say not for how long, nor for what time, and the grantor make livery of seisin
according to the deed; by the gift the grantee hath an estate for his own life... If one bargain and sell
land to another for money, and limit no time, and express no estate; by this assurance the bargainee
shall have only an estate for life." According to Coke on Littleton, 42a--"If a man grant an estate to
a woman dum sola fuit, or durante viduitate, or quamdiu se bene gesserit, or to a man and a woman
during the coverture, or as long as the grantee dwell in such a house, or so long as he pay xl. &c. or
until the grantee be promoted to a benefice, or for any like incertaine time, which time, as Bracton
saith, is tempus indeterminatum: in all these cases, if it be of lands or tenements, the lessee hath in
judgment of law an estate for life determinable, if livery be made; and if it be of rents, advowsons,
or any other thing that lie in grant, he hath a like estate for life by the delivery of the deed." But
whether the tenure is technically for life is unimportant--these Justices cannot be removed till an
address from both Houses. If future commissions be issued in the same form, they will have the
same effect.

In my opinion, therefore, sec. 12 of the Act is valid, and the appointment is valid although not for
life; and I answer question 1 in the negative (as to both arbitral and enforcing provisions), question
2 in the negative, and question 3 in the affirmative.

As for the other points argued, they do not arise if the view which I have stated of sec. 72 be
accepted. But I may say that I am very doubtful as to the President of this exceptional "Court" being
a "Justice" of a Court created by Parliament for the exercise of "the judicial power of the
Commonwealth," within the meaning of secs. 71 and 72. He certainly is not called a "Justice"; but
that fact might not be conclusive if it were clear that he was administering or determining the law as
Judges do. In a legal document such as the Constitution, the words "Judge" or "Justice" or "judicial"
must be read in this technical sense; not in transferred senses, such as in relation to flowers or to
pictures or to wine or to the fixing of fair rents--"judicial rents." In the exercise of the President's
arbitral functions under the Act, he prevents and settles disputes by dictating industrial conditions if
he cannot secure agreements (sec. 24). In addition to his arbitral functions, the Act purports to
empower him to impose penalties for breach of the industrial conditions dictated (sec. 38 (c)). But
he has no power to enforce any law outside the boundaries of this exceptional Act. He cannot even
entertain an application for penalty for a strike (sec. 6). If he can be called a "Justice" at all, in
carrying out the limited and special duties of the Act, I doubt very much whether he is exercising
"the judicial power of the Commonwealth" within the meaning of sec. 71. He has no general
jurisdiction for the determination of either civil or criminal controversies. All his duties are
referable to the Act made in pursuance of sec. 51 (XXXV.), and matters incidental to that power
vested in the Parliament. In enforcing awards, as well as in making awards, he is merely carrying
out the object of securing such conditions in industrial matters as will conduce to industrial peace.

In the United States it has been held that Courts created by Congress for the territories, in pursuance
of the special power to regulate territories, do not even in enforcing laws exercise "the judicial
power of the United States"; and that the tenure of the Justices of such Courts need not be "during
good behaviour" (American Insurance Co. v. 356 Bales of Cotton[23]; Clinton v. Englebrecht[24]).
Nor are the Courts of private land claims or the Inter-State Commerce Commission treated as
exercising "the judicial power" (Willoughby on the Constitutional Law of the United States, vol ii.,
p. 970). The position here seems to be similar to that in the case of the Northern Territory and
Papua, according to R. v. Bernasconi[25].

Assuming, however, that the Act is beyond the power of the Parliament so far as it confers what are
called the "enforcing powers" on the Court, and that it is valid so far as it confers the arbitral
powers, I am of opinion that the awards can be enforced in Courts of summary jurisdiction, under
sec. 44. It is true that sec. 44 purports to confer on such Courts the power to impose "any penalties
which the Court" of Conciliation "has power to impose," and that, according to the assumption, the
latter Court is found not to have the power to impose penalties. But the words of sec. 44 are
obviously framed so as to fit in with the provisions as to the imposition of penalties contained in
sec. 38 (d), sec. 49, &c.; they are not framed under any doubt as to the constitutional power to enact
the sections; they mean, in effect, any penalties which, according to the rest of the Act, the Court (of
Conciliation) has power to impose. We must treat these words in sec. 44 as linked with the words of
sec. 38, and as a compendious expression to cover all the penalties that are covered by sec. 38.
There is no ground for thinking that Parliament knew that it had not the power to enact sec. 38 (d),
or for thinking that if it had known it would not have given to the summary Courts the power to
impose penalties.

The suggestion made by the Chief Justice as to the true effect of secs. 11-13 of the Act is very
important, and I have given it anxious consideration. It is favoured by Mr. Weigall's reasonable
contention as to the construction of the opening words in sec. 72 of the Constitution; it concedes to
the President practically all that security and independence which are essential for him in the
performance of his invidious functions; and it would relieve all the members of this Court from the
duty of declaring an Act of the Parliament to be invalid. Personally, I do not think that the use of the
word "judicial" in sec. 8 of the Judiciary Act necessarily interferes with this view. But I cannot
avoid the conclusion that secs. 11-13 do not merely add functions to a Justice of the High Court, and
that they mean to create a second Court and a second office.

If it is necessary to express an opinion on the severability of that part of the Act which confers the
"enforcing powers" from the rest of the Act, my view is that it is severable. In Owners of s.s.
Kalibia v. Wilson[26] I took a wider view of severability than my learned colleagues, but, accepting
their doctrine as my guide, I think (doubtingly) that there is no sufficient reason for treating all the
Act as invalid if the enforcing part is invalid.

Gavan Duffy J.

I concur with my brother Higgins in thinking that an investigation as to the meaning of sec. 72 of
the Constitution will enable us to answer the questions submitted for our consideration in this case.
The relevant portions of the section are these:--"72. The Justices of the High Court and of the other
Courts created by the Parliament--(i.) Shall be appointed by the Governor-General in Council: (ii.)
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
misbehaviour or incapacity."

It is said that these words prescribe a tenure or term of office, because the first sub-section provides
a starting point for the term and the second sub-section enacts that a Judge appointed under the
provisions of the first sub-section shall retain his office unless and until he is removed under the
provisions of the second sub-section. If that is the meaning of the second sub-section, a term of
office is prescribed; but is that its meaning? It says that the Judge, when appointed, shall not be
removed except by the Governor in Council after the fulfilment of certain conditions precedent; but
that does not mean that he shall occupy his office until he is removed, but that the right to remove
him from his office, which is assumed to exist in some circumstances, shall be exercised only in the
circumstances specified in the sub-section. Removal from an office is an expression well understood
by lawyers. It does not apply to the natural expiration of a term of office, but connotes the existence
of a term and its destruction before it would expire in the ordinary course of events. If the true
meaning of the sub-section be what I have stated, no term is prescribed. A term must have a
beginning and an end, a terminus a quo and a terminus ad quem, and here there is no terminus ad
quem either expressed or to be implied. The second sub-section is identical in its effect with sub-sec.
II. of sec. 103 of the Constitution, which deals with the members of the Inter-State Commission,
except that that sub-section does prescribe a term (viz., seven years) to which the condition as to
removal is attached, and the second sub-section of sec. 72 does not. Authority to fix the term of
office of the Justices of the various Commonwealth Courts according to the exigencies of the case is
left with the Commonwealth Parliament, but whatever may be his term of office, a Judge, once
appointed, cannot during the term be removed for any cause whatever except as provided by the
second sub-section.

Par. 4 of the special case is as follows: "Objection has been taken at the hearing of the said summons
on 9th September by counsel for the said party that the Commonwealth 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." Three questions are submitted to us, which I
understand we are to answer not at large but as they are affected by the validity or invalidity of the
appointment of my brother Higgins as President of the Commonwealth Court of Conciliation and
Arbitration for a term of seven years only. In that sense I answer them as follows:--(1) No. (2) No.
(3) Yes.
Powers J.

In a special case stated by the President of the Commonwealth Court of Conciliation and Arbitration
the following questions were submitted for the opinion of this Court:--"(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?"

I do not think any member of the Court considers that the constitution of a Commonwealth Court of
Conciliation and Arbitration, to be presided over by a Judge or Justice duly appointed as Judge of
that Court in accordance with sec. 72 of the Constitution, to exercise all the powers given by the
present Commonwealth Conciliation and Arbitration Act, is beyond the powers of the Parliament of
the Commonwealth; but the question has been limited, during the argument, to whether the
Commonwealth Court of Conciliation and Arbitration, established by the Commonwealth Court of
Conciliation and Arbitration Act 1904-1915, with a President (constituting the Court) appointed for
seven years only, is beyond the powers of the Commonwealth Parliament, and in particular as to (a)
and (b) of question 1.

As to the first question:--It was contended (1) that under the Constitution sec. 71 only empowered
the Governor in Council to establish Federal Courts, and that the judicial power of the
Commonwealth could only be vested in the High Court of Australia and in such Federal Courts as
Parliament creates or invests with Federal jurisdiction; and (2) that under sec. 72 of the Constitution
Justices of the High Court or Justices of other Federal Courts created by Parliament to exercise
judicial power could be appointed by the Governor-General in Council only for life, that is, subject
to removal only on the ground of proved misbehaviour or incapacity.

It is admitted as a fact in the special case that the President was appointed as President of the
Commonwealth Court of Conciliation and Arbitration and for seven years only. Whether that fact
alone renders the award in this case invalid depends on the Court's answers to questions 1 (a) and
(b), and will be dealt with in answering question 2.

Two grounds were submitted why an affirmative answer should be given to both (a) and (b) of
question 1: (1) that the Commonwealth Conciliation and Arbitration Act 1904-1915 did establish a
Federal Court of record, a Court of justice with judicial power to enforce awards by penalties, and
otherwise, and that such Court consisted of a President who was appointed, and entitled to hold
office, for seven years only, but eligible for reappointment; (2) that although the Commonwealth
Parliament had power under pl. XXXV. of sec. 51 of the Constitution to make laws with respect to
conciliation and arbitration for the prevention and settlement of industrial disputes extending
beyond the limits of one State, and had power to appoint an arbitrator to settle and prevent industrial
disputes, and to give the arbitrator arbitral powers and powers of conciliation and powers incidental
thereto, it could not, without complying with sec. 72 of the Constitution, appoint a Court of record
with judicial powers to carry out the arbitral powers, and to enforce awards by penalties or
otherwise, except by a Judge removable from that office only on an address from both Houses of
Parliament in the same session on the ground of proved misbehaviour or incapacity.

The first question to be decided is whether the Commonwealth Court of Conciliation and
Arbitration established by the Act in question was authorized to exercise judicial powers in addition
to the arbitral and conciliation powers vested in the President by the Act. It was admitted by counsel
for the organization, and all members of the Court agreed, that the power to enforce awards by
penalties was judicial power, and had been given by the Act.

The second question was whether judicial powers for the enforcement of awards could not legally
be given to the President under pl. XXXV. of sec. 51 of the Constitution. Counsel for the
organization did not contend in this case that judicial power could be given under that placitum. I
agree that only the powers necessary for preventing and settling disputes could be given by that
section, and not judicial powers to be enforced only after the disputes had been prevented and
settled, by agreements or awards. The power did not extend beyond the right to make laws to
prevent and settle disputes.

The power to enforce arbitration awards is an entirely different matter, and is not necessary to
prevent or settle disputes. I say this after an experience of over four years' work in the Court as a
Deputy President, during which time I have settled numerous disputes by awards and effected many
settlements of disputes by conciliation without having to use the judicial power to enforce
observance of awards to enable me to do so. It is clear that judicial power not authorized by pl.
XXXV. has been given to the Commonwealth Conciliation and Arbitration Court to exercise judicial
functions not necessary for the purpose of preventing or settling industrial disputes, and so far as
question 1 is concerned we have to inquire whether that is sufficient to require the Court to answer
the question in the affirmative.

The answer to the question depends, I think, on whether the portions of the Act giving arbitral
powers are properly severable from the judicial powers contained in the Act. That question must be
considered in the light of the well-known principles laid down by this and other Courts as to
"severability" of parts of one Act. This Court has already held that a very important portion of this
Act (viz., sub-secs. (f) and (g) of sec. 38 dealing with a "common rule") was severable. The
question is whether the parts of the Act giving judicial powers to enforce awards after disputes are
settled, or any other judicial powers not necessary for the purpose of preventing or settling the
disputes referred to in the Act and Constitution, are severable, or whether the parts are so bound up
in the Act that the whole Act must be declared void if the judicial powers are declared invalid.

I agree with the previous decisions of this Court where it was decided more than once that the
Commonwealth Court of Conciliation and Arbitration was established under the power given to
Parliament by pl. XXXV. of sec. 51, and I agree with what the learned Chief Justice said in his
judgment in The Tramways Case [No. 1][27], where he said:--"The power conferred by sec. 51
(XXXV.) of the Constitution is to make laws with respect to arbitration. The authority to arbitrate
might be conferred upon an individual arbitrator, or board of arbitrators, or a Court; but in either
case the functions would be arbitral, and in so far as an award was made in the exercise of arbitral
functions it would not, even without sec. 31 of the Arbitration Act, be appealable under sec. 73. See
National Telephone Co.'s Case2(1913) A.C., 546.. The test whether an appeal would lie in such a
case would, as pointed out by Lord Moulton3(1913) A.C., at p. 559., be whether the tribunal in
giving the decision in question was exercising arbitral powers or acting as a Court. It is true that the
Arbitration Act calls the Arbitration Court a Court and a Court of record, but the nomenclature does
not alter the nature of the functions. In the discharge of his arbitral functions the President is not
bound by the rules of evidence, but may inform his mind in any manner he thinks fit. A Court of
appeal would have no means of reviewing a decision so arrived at (Moses v. Parker4(1896) A.C.,
245.). I am strongly disposed to think that the so-called Court of Arbitration when performing its
arbitral functions is not acting as a Court properly so called."
The Act consists of ninety-two sections. Mr. Starke, in asking the Court to hold that the Act vested
judicial powers in the Court referred to four of the many sub-sections of sec. 38, sec. 44 (2), 48 and
50, as instances of judicial power, in the strictest sense, being vested in the Court. The last three
sections are in a separate part of the Act, headed "The Enforcement of Orders and Awards." The
sub-sections of sec. 38 objected to, also deal with enforcement of awards, and ought to have been
included in Part IV. Sec. 11 was also referred to, in which the Court is called a Court of record, but
it would surely be admitted that if it had not been vested with judicial power to enforce awards, or
to punish, the mere fact of calling it a Court of record did not necessarily make it a Court of justice.
One or two other sections were referred to, but were not pressed, as necessarily judicial power only.

To see whether Parliament intended it to be primarily a Court of judicature or a Court of
compulsory arbitration only, it is necessary to look at the whole Act and its declared objects. It must
also be remembered that at the date the Constitution came into force there were in existence in the
Commonwealth and in New Zealand two different classes of Courts, namely. Courts of judicature to
settle existing rights between parties, and Courts of compulsory arbitration with legislative power to
fix new rates of wages and new conditions to be observed by employers for a fixed term, and not to
settle existing rights. In all cases the claims are for better wages or better conditions than persons are
entitled to at the time under existing rights.

I find, on looking at the Act to see if it was intended to make it a Court of judicature, six very strong
grounds why I am satisfied that it was only intended to make it a Court of compulsory arbitration--
and not a Court of judicature: (1) the title of the Act (sec. 1); (2) the declared objects of the Act; (3)
the fact that no power has been given to the Court to punish for any breach of the Act; (4) the fact
that by sec. 25 it declares that "in the hearing and determination of every industrial dispute and in
exercising any duties or powers under or by virtue of this Act the Court or the President shall act
according to equity, good conscience, and the substantial merits of the case, without regard to
technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its or
his mind on any matter in such manner as it or he thinks just"; (5) that the only power given to it as
to penalties is to impose penalties for breaches of its awards or orders made as an Arbitration
Court--(this power, I assume, was conferred because Parliament considered it incidental to the
power to make awards); (6) that no power of execution to enforce even the power to impose
penalties was given to the Arbitration Court--(under sec. 46 orders made by the Arbitration Court
imposing penalties are to be enforced by execution only in Federal or State Courts of judicature, not
by the Arbitration Court).

Further, apart from the few objectionable sections or sub-sections referred to by Mr. Starke, granting
judicial power not authorized by pl. XXXV., there remains a very important Act containing about
eighty-seven sections dealing fully with conciliation and arbitration for the prevention and
settlement of industrial disputes, and one that has worked well and efficiently for the last fourteen
years.

The title of the Act itself reads: "An Act relating to Conciliation and Arbitration for the Prevention
and Settlement of Industrial Disputes extending beyond the Limits of any one State." It may be cited
as the Commonwealth Conciliation and Arbitration Act 1904 (sec. 1). The chief objects of the Act
are stated to be (sec. 2): "(i.) To prevent lock-outs and strikes in relation to industrial disputes; (ii.)
To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdiction for the
prevention and settlement of industrial disputes; (iii.) To provide for the exercise of the jurisdiction
of the Court by conciliation with a view to amicable agreement between the parties; (iv.) In default
of amicable agreement between the parties, to provide for the exercise of the jurisdiction of the
Court by equitable award; (v.) To enable States to refer industrial disputes to the Court, and to
permit the working of the Court and of State Industrial Authorities in aid of each other; (vi.) To
facilitate and encourage the organization of representative bodies of employers and of employees
and the submission of industrial disputes to the Court by organizations, and to permit representative
bodies of employers and of employees to be declared organizations for the purposes of this Act;
(vii.) To provide for the making and enforcement of industrial agreements between employers and
employees in relation to industrial disputes."

The whole of the stated objects of the Act can be carried out fully without the sections referred to
vesting in the President judicial power to enforce awards. I agree with my brothers Isaacs and Rich
that the portions of the Act giving arbitral powers only and the parts giving judicial powers not
arbitral are separable; and that the Act without the parts dealing with enforcement of awards will be
substantially the Act Parliament had in view when it was passed, and an Act in accordance with the
title and the declared objects set out in sec. 2 of the Commonwealth Conciliation and Arbitration
Act 1904-1915.

A further objection was raised, namely, that the Act cannot be separable because the work of a
compulsory arbitration Court requiring the exercise of judicial power is necessarily judicial work
within the meaning of sec. 71 of the Constitution. The answer to that objection is, I think, that a
Court of judicature is a Court to settle existing rights between parties, but a compulsory arbitration
Court is not a Court to settle existing rights. Its powers are more legislative than judicial. It is
empowered to fix by an award, which is to have the effect of law, what wages are to be paid and
conditions to be observed by employers and employees for a term apart altogether from any existing
rights of employers or employees. The award is binding as a declaration of the law on persons who
have not had any existing rights prior to the award, for it compels employers to pay the minimum
wage fixed by the award to persons employed for the first time after the date of the making of the
award, and such persons could not have had any existing rights to submit to the Court. Sec. 40 is
surely a delegation of legislative power when it authorizes the arbitrator to make it an offence if,
during the term of the award, an employer does not give preference to unionists when he desires to
employ anyone to do his work. The Arbitration Court is only asked to make an award when
employers or employees are not content with existing rights and would not be content with any
declaration as to existing rights.

As to the contention that Parliament cannot delegate to any Court or body any legislative powers, it
is only necessary to refer to the Commonwealth Judiciary Act and to all State Judicature Acts in
which power is given to the Courts to legislate by making rules as to procedure in the Courts
(conditions of appeal, &c.), and to Local Government Acts in all the States in which exclusive
legislative powers are delegated to municipal bodies under the authority to make by-laws for the
better government of the municipalities and the control of residents in, and even persons passing
through, the municipal areas. Commonwealth and State Railway Acts also delegate to the Railway
Commissioners power to make by-laws for the better management of the railways and the control of
traffic, &c. Many other bodies might be mentioned to whom legislative authority has been delegated
by Parliament.

For the reasons mentioned, I think the Act is severable, and that the answer to question 1 (a) should
be No, and the answer to question 1 (b) Yes (so far as they are to be enforced by a President
appointed for seven years only).

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 Constitution 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 Parliament 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 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), &c. 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
Constitution, 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
Arbitration 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 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 conferred 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," &c., 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.

The third question is: "Is the award enforceable by the said 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
Constitution, 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
therefore 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 arbitration 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 is 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 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 Hedderwick, Fookes & Alston.
Solicitor for the Commonwealth, Gordon H. Castle, Crown Solicitor for the Commonwealth.
[1] [1824] USSC 39; 9 Wheat., 738, at p. 866.
[2] 1 Show., 426; 506.
[3] 1 Show., at pp. 527 et seqq.
[4] 10 App. Cas., 282.
[5] 3 App. Cas., 889.
[6] [1908] USSC 154; 211 U.S., 210, at p. 226.
[7] [1909] USSC 10; 212 U.S., 1, at p. 8.
[8] [1910] HCA 8; 10 C.L.R., 266, at pp. 318-319.
[9] [1913] USSC 269; 231 U.S., 298, at p. 305.
[10] [1910] HCA 33; 11 C.L.R., 1, at p. 51.
[11] 12 App. Cas., 531, at p. 543.
[12] (1900) A.C., 6, at pp. 9-10.
[13] (1909) A.C., 72, at p. 76.
[14] 10 Ch. D., 530, at p. 544.
[15] 2 Cl. & F., 194, at p. 243.
[16] (1896) A.C., 600, at p. 608.
[17] (1892) 1 Q.B., 431, at pp. 446-447.
[18] (1896) A.C., 575.
[19] 2 Gray, 84, at p. 99.
[20] 6 Mod., 26, at p. 27.
[21] 46 L.T., 552.
[22] 8 Rep., 150b, at p. 154b.
[23] [1828] USSC 2; 1 Pet., 511.
[24] [1871] USSC 28; 13 Wall., 434.
[25] [1915] HCA 13; 19 C.L.R., 629.
[26] [1910] HCA 77; 11 C.L.R., 689.
[27] 18 C.L.R., at pp. 62-63.
[28] (1913) A.C., 546.
[29] (1913) A.C., at p. 559.
[30] (1896) A.C., 245.

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