Commonwealth Industrial Court

Last updated

Commonwealth Industrial Court
Australian Industrial Court (post-1973)
Coat of Arms of Australia.svg
Established1956
Dissolved1977 (de facto)
2004 ( de jure )
Composition methodAppointed by Governor-General on the recommendation of the federal government
Authorized by Constitution of Australia Conciliation and Arbitration Act 1956
Appeals to High Court of Australia
Judge term lengthLife

The Commonwealth Industrial Court, known as the Australian Industrial Court from 1973, [1] was a specialist court to deal with industrial matters, principally the enforcement of awards and orders of the Commonwealth Conciliation and Arbitration Commission. [2] Over time it took on more matters and its judges were allocated a wide range of judicial tasks until it was replaced in 1977 by the Federal Court of Australia which had a more general jurisdiction covering matters arising under Australian federal law. [3]

Contents

Background

From 1904 until 1956 the Commonwealth Court of Conciliation and Arbitration had exercised both arbitration functions, hearing and settling interstate industrial disputes by making awards, [4] and judicial functions such as interpreting and enforcing those awards. In the Boilermaker's case, [5] the High Court held that a tribunal could not create new rights such as making an award, the arbitration function, and enforce those rights, the judicial function, due to the separation of powers in the Australian Constitution. [5] The functions of the court were split, with the judicial functions being given to the newly created Commonwealth Industrial Court and the arbitration functions being given to the Commonwealth Conciliation and Arbitration Commission. [6] [7] The six remaining judges, [8] were similarly split with two judges, Edward Dunphy and Sir Edward Morgan, being appointed to the Commonwealth Industrial Court and four, Sir Richard Kirby, Alfred Foster, Sydney Wright and Richard Ashburner being appointed to the Commonwealth Conciliation and Arbitration Commission. [9]

Establishment and operation

The Australian Government challenged the High Court's decision in the Boilermaker's case and obtained special leave to appeal to the Privy Council on 1 June 1956. [5] The Australian parliament did not wait for the outcome of the appeal, passing the Conciliation and Arbitration Act which received assent on 30 June 1956. [6] The court was formally established on 15 August 1956 and then Attorney-General John Spicer was appointed the first, and as it transpired, only, Chief Judge. [10] Judges of the Commonwealth Court of Conciliation and Arbitration had previously been appointed to act in various courts, [11] This practice continued with appointments to the supreme courts of the Australian Capital Territory, [12] Christmas, [13] Cocos (Keeling), [13] & Norfolk Islands. [14] Sir John Spicer was appointed to the first Royal Commission into the collision between HMAS Melbourne and HMAS Voyager, [10] and inquiries into the aviation crashes of TAA Flight 538 (1960), Ansett-ANA Flight 325 (1961) and Ansett-ANA Flight 149 (1966). [15] Judges were also appointed to committees to review legislation and report to parliament, such as the appointment of Sir John Spicer to the Copyright Law Review Committee, [16] and John Kerr to the Commonwealth Administrative Review Committee. [17] The Copyright Law Review Committee subsequently recommended the appointment of the Copyright Tribunal and Sir John Spicer was appointed as its president. [10] When the Australian Parliament passed the Trade Practices Act in 1965, the Commonwealth Industrial Court was given power to enforce orders of the Trade Practices Tribunal, [18] [19] and Sir Richard Eggleston was appointed the first president of the Trade Practices Tribunal. [20] In 1976 when the Administrative Appeals Tribunal was established appeals were to the Australian Industrial Court, adding yet another non-industrial matter to the Court's jurisdiction, [19] and Gerard Brennan was appointed as the first President of the Administrative Appeals Tribunal. [21]

Replacement by Federal Court

The establishment of a federal court was proposed at least as early as 1957, [19] and was announced by Nigel Bowen, the Attorney-General, in 1967. Bowen said that a Commonwealth superior court was necessary because the burden of work in the High Court's original jurisdiction might limit its capacity to perform its primary roles of interpreting the Constitution and as the court of ultimate appeal.. [22] It was however another 9 years until the Federal Court was established, absorbing the jurisdiction of the Australian Industrial Court, the Federal Court of Bankruptcy and some of the original jurisdiction of the High Court, including appeals from the supreme courts of the territories. [19] [23]

It was initially announced that no judge would be appointed over the age of 65, [24] When judges were appointed to the Federal Court on 1 February 1977, two judges over the age of 65 were appointed, Sir Reginald Smithers then aged 73 and Sir John Nimmo, then aged 68. Two judges of the Australian Industrial Court were not appointed to the Federal Court, Sir Percy Joske, then aged 81 and Edward Dunphy, then aged 69. The Constitutional amendment to section 72, [25] which introduced a retirement age of 70, did not come in to force until 29 July 1977. [26]

The last judge Ray Northrop retired in 1998 however the court was not formally abolished until 2004. [27] [28]

Judges

Combined list of judges of the Commonwealth Industrial Court / Australian Industrial Court
PositionNameFromToTermCommentsNotes
Chief Judge Sir John Spicer 15 August 19561 November 197620 years, 78 daysFormerly the Australian Attorney-General [9] [10]
Judge Edward Dunphy 16 May 194931 December 198233 years, 229 daysA judge of the Commonwealth Court of Conciliation and Arbitration,
judge of the supreme courts of the Australian Capital Territory, Christmas, Cocos (Keeling) & Norfolk Islands		 [9] [29]
Sir Edward Morgan 4 August 195231 May 19607 years, 301 daysA judge of the Commonwealth Court of Conciliation and Arbitration,
judge of the Supreme Court (ACT) 		[9] [30] [31]
Sir Percy Joske CMG 3 June 196031 December 197717 years, 211 daysJudge of the supreme courts of the Australian Capital Territory & Norfolk Island [32] [33]
Sir Richard Eggleston 4 June 196030 June 197414 years, 26 daysJudge of the supreme courts of the Australian Capital Territory & Norfolk Island [34]
Sir Reginald Smithers 20 January 196530 September 198621 years, 253 daysJudge of the Supreme Court (ACT) [35]
(Sir) John Kerr 3 November 196622 May 19725 years, 201 daysFormerly a judge of the Supreme Court (ACT),
appointed Chief Justice of NSW 		[36] [37]
Sir John Nimmo 29 April 196930 June 198011 years, 62 daysJudge of the Supreme Court (ACT) [38]
Edward Woodward 18 May 197231 July 199018 years, 74 daysJudge of the Supreme Court (ACT) [39]
Robert Franki 23 May 19725 August 198614 years, 74 daysFormerly a Deputy President of the Commonwealth Conciliation and Arbitration Commission,
judge of the Supreme Court (ACT) 		[40]
John Sweeney 30 November 19737 May 19817 years, 158 daysFormerly a Deputy President of the Commonwealth Conciliation and Arbitration Commission,
judge of the Supreme Court (ACT) 		[41] [42]
Phillip Evatt DSC 2 July 197428 February 198712 years, 241 daysJudge of the supreme courts of the Australian Capital Territory & Norfolk Island [43]
Robert St John 15 April 197531 March 19859 years, 350 daysJudge of the supreme courts of the Australian Capital Territory & Norfolk Island [44]
Ray Northrop 9 March 197631 August 199822 years, 175 daysJudge of the Supreme Court (ACT) [45]
(Sir) Gerard Brennan 28 June 197612 February 19814 years, 229 daysJudge of the Supreme Court (ACT), appointed to the High Court [21] [46]

Related Research Articles

Australian labour law concerns Commonwealth, state, and common law on rights and duties of workers, unions and employers in Australia. Australian labour law has a dual structure, where some employment issues and relationships are governed by Commonwealth laws, and others are governed by state and territory laws or the common law. It shares a heritage with laws across the Commonwealth of Nations, UK labour law and standards set by the International Labour Organization, the Australian legislature and courts have a built a comprehensive charter of rights at work.

The Constitution Alteration Bill 1977 was a successful proposal to alter the Australian Constitution to introduce a retirement age of 70 for federal judges. It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977.

<i>R v Kirby; Ex parte Boilermakers Society of Australia</i> Judgement of the High Court of Australia

R v Kirby; Ex parte Boilermakers' Society of Australia, known as the Boilermakers' Case, was a 1956 decision of the High Court of Australia which considered the powers of the Commonwealth Court of Conciliation and Arbitration to punish the Boilermakers' Society of Australia, a union which had disobeyed the orders of that court in relation to an industrial dispute between boilermakers and their employer body, the Metal Trades Employers' Association.

In Australian constitutional law, Chapter III Courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in Chapter III of the Australian Constitution.

<span class="mw-page-title-main">Commonwealth Court of Conciliation and Arbitration</span> Australian court (1904 to 1956)

The Commonwealth Court of Conciliation and Arbitration was an Australian court that operated from 1904 to 1956 with jurisdiction to hear and arbitrate interstate industrial disputes, and to make awards. It also had the judicial functions of interpreting and enforcing awards and hearing other criminal and civil cases relating to industrial relations law.

<span class="mw-page-title-main">Administrative Appeals Tribunal</span> Australian tribunal

The Administrative Appeals Tribunal (AAT) is an Australian tribunal that conducts independent merits review of administrative decisions made under Commonwealth laws of the Australian Government. The AAT review decisions made by Australian Government ministers, departments and agencies, and in limited circumstances, decisions made by state government and non-government bodies. They also review decisions made under Norfolk Island laws. It is not a court and not part of the Australian court hierarchy; however, its decisions are subject to review by the Federal Court of Australia and the Federal Circuit Court of Australia. The AAT was established by the Administrative Appeals Tribunal Act 1975 and started operation in 1976.

<span class="mw-page-title-main">Supreme Court of Norfolk Island</span> Superior court for the Australian territory of Norfolk Island

The Supreme Court of Norfolk Island is the superior court for the Australian territory of Norfolk Island. It has unlimited jurisdiction within the territory in civil matters and hears the most serious criminal matters. It also has jurisdiction over the Coral Sea Islands Territory. All matters are heard before a single judge, including appeals from the Court of Petty Sessions. In the Australian court hierarchy, it is one of eight state and territory Supreme Courts having unlimited jurisdiction in their respective parts of Australia. Appeal lies to the Federal Court of Australia, from which an appeal by special leave can be made to the High Court of Australia.

<span class="mw-page-title-main">Federal Court of Australia</span> Australian superior federal court

The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law, along with some summary and indictable criminal matters. Cases are heard at first instance mostly by single judges. In cases of importance, a Full Court comprising three judges can be convened upon determination by the Chief Justice. The Court also has appellate jurisdiction, which is mostly exercised by a Full Court comprising three judges, the only avenue of appeal from which lies to the High Court of Australia. In the Australian court hierarchy, the Federal Court occupies a position equivalent to the supreme courts of each of the states and territories. In relation to the other courts in the federal stream, it is superior to the Federal Circuit and Family Court of Australia for all jurisdictions except family law. It was established in 1976 by the Federal Court of Australia Act.

The Western Australian Industrial Relations Commission, as constituted under the Industrial Relations Act 1979, conciliates and arbitrates industrial disputes, sets conditions of employment and fixes wages and salaries by making industrial awards, approves enterprise agreements and decides claims of unfair dismissal in the State of Western Australia, with respect to those employers not regulated by the Commonwealth of Australia under the Fair Work Act 2009.

Hon. Edward Arthur DunphyQC was a justice within the Australian federal court system.

<i>R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP</i> Judgement of the High Court of Australia

R v Commonwealth Court of Conciliation and Arbitration; Ex parte BHP, was an early decision of the High Court of Australia concerning the jurisdiction of the Commonwealth Court of Conciliation and Arbitration in which the High Court controversially, granted prohibition against the Arbitration Court to prevent it from enforcing aspects of an industrial award. The High Court held that the Arbitration Court had gone beyond settling the dispute that had been submitted to it and in doing so had made a jurisdictional error.

<i>Australian Boot Trade Employees Federation v Whybrow & Co</i> Judgement of the High Court of Australia

Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

<i>Federated Sawmill Employees Association v James Moore & Sons Pty Ltd</i> Landmark Australian court case

Federated Sawmill Employees Association v James Moore & Sons Pty Ltd, commonly known as the Woodworkers case or the Sawmillers case was a decision of the High Court of Australia in 1909 concerning the question whether the Commonwealth Court of Conciliation and Arbitration could make an award that was inconsistent with a State wages board determination. The High Court was divided 2:2 and thus the decision of the Chief Justice prevailed, in what is sometimes described as a statutory majority. Griffith CJ, O'Connor J agreeing, held that the Arbitration Court could not make an award that was inconsistent with the minimum wages fixed by a Wages Board under a State law.

<span class="mw-page-title-main">Industrial Relations Court of Australia</span>

The Industrial Relations Court of Australia was a short-lived Chapter III Court whose jurisdiction was transferred from the Federal Court in 1994, and transferred back in 1997. In the words of former Chief Justice Robert French, "The tide went in, the tide went out". Every judge had a concurrent appointment in the Federal Court. Despite the transfer of jurisdiction, any existing matter or appeal from an existing matter remained in the Industrial Relations Court of Australia, with the result that the last case was not finally disposed of until 2005/6. The Court was not to be abolished until after the last judge had retired. The last judge to retire was Anthony North on 11 September 2018. The court was formally abolished on 1 March 2021.

The Federal Court of Bankruptcy was an Australian court that was established in 1930, pursuant to Chapter III of the Constitution. The jurisdiction in bankruptcy was shared with state courts. On 1 February 1977 the bankruptcy jurisdiction was transferred to the newly established Federal Court of Australia. No new cases could commence in the Federal Court of Bankruptcy after 1 February 1977, however the Court was not formally abolished until 1995, after the last judge, Charles Sweeney retired.

<span class="mw-page-title-main">George Dethridge</span> Australian judge

George James Dethridge was an Australian judge. He was the inaugural Chief Judge of the Commonwealth Court of Conciliation and Arbitration, in office from 1926 until his death in 1938.

References

  1. ↑ Conciliation and Arbitration Act 1973 (Cth) s4.
  2. ↑ Moore, M. "The role of specialist courts - an Australian perspective". [2001] Federal Judicial Scholarship 11.
  3. ↑ "The Court's Jurisdiction". Federal Court of Australia. November 2015.
  4. ↑ Pursuant to the Constitution of Australia (Cth) s 51(xxxv).
  5. 1 2 3 R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermaker's case) [1956] HCA 10 , (1956) 94 CLR 254 Icons-mini-file acrobat.gif , High Court. Affirmed on appeal Attorney-General (Cth) v The Queen [1957] UKPC 4 , [1957] AC 288; [1957] UKPCHCA 1 , (1957) 95 CLR 529, Privy Council (on appeal fromAustralia).
  6. 1 2 Conciliation and Arbitration Act 1956 (Cth) Icons-mini-file acrobat.gif (PDF).
  7. ↑ French, R (1 May 2014). "Federal Circuit Court – History Repeats Itself" (PDF). High Court. Retrieved 18 October 2018.
  8. ↑ Sir Raymond Kelly, the Chief Judge of the Commonwealth Court of Conciliation and Arbitration, died on 25 July 1956.
  9. 1 2 3 4 "Appointments Industrial Court" ( Icons-mini-file acrobat.gif PDF). Cth Gazette . 4 September 1956. pp. 2701A–2701D.
  10. 1 2 3 4 "Spicer, Sir John Armstrong (1899–1978)". The Biographical Dictionary of the Australian Senate. Parliament of Australia . Retrieved 25 December 2018.
  11. ↑ George Dethridge and Lionel Lukin had been appointed to the Federal Court of Bankruptcy while Dethridge and Harold Piper had been appointed to the Supreme Court (ACT).
  12. ↑ All judges with the exception of Chief Judge Sir John Spicer.
  13. 1 2 Edward Dunphy.
  14. ↑ Sir Richard Eggleston, Sir Percy Joske, Edward Dunphy, Robert St John and Phillip Evatt.
  15. ↑ "Index of Public Inquiries into Air Accidents from 1938". AirwaysMuseum.com. Retrieved 24 December 2018.
  16. ↑ "Report of the Committee Appointed by the Attorney General of the Commonwealth to Consider What Alterations are Desirable in the Copyright Law of the Commonwealth" (PDF). 22 December 1959. Archived from the original (PDF) on 17 July 2005.
  17. ↑ Shi v Migration Agents Registration Authority [2008] HCA 31 at [30], (2008) 235 CLR 286, High Court.
  18. ↑ Trade Practices Act 1965 (Cth) sections 4 and 68.
  19. 1 2 3 4 Black, M, The Federal Court of Australia: The first 30 years (PDF) (2007) 31(3) Melbourne University Law Review 1017.
  20. ↑ "Trade Practices Act 1965. Appointment of President Trade Practices Tribunal". Commonwealth of Australia Gazette . No. 64. 21 July 1966. p. 3680. Retrieved 26 December 2018– via National Library of Australia.
  21. 1 2 Baker, B & Gageler, S. "Sir (Francis) Gerard Brennan AC KBE QC" (PDF). High Court. Retrieved 31 December 2018.
  22. ↑ Nigel Bowen, Attorney General (18 May 1967). "Commonwealth Superior Court: Ministerial Statement" (PDF). Parliamentary Debates (Hansard) . Commonwealth of Australia: House of Representatives. pp. 2335–2046.
  23. ↑ Federal Court of Australia (Consequential Provisions) Act 1976 (Cth)
  24. ↑ "Federal Judges Age limit bars 4". The Canberra Times . 8 January 1977. p. 1. Retrieved 22 October 2018– via National Library of Australia.
  25. ↑ Constitution (Cth) s 72 Judges' appointment, tenure, and remuneration.
  26. ↑ Constitution Alteration (Retirement of Judges) 1977 (Cth).
  27. ↑ "Explanatory Memorandum: Law and Justice Legislation Amendment Bill 2004" (PDF). parlinfo.aph.gov.au. Retrieved 2 November 2018.
  28. ↑ Law and Justice Legislation Amendment Act 2004 (Cth).
  29. ↑ "Appointment Edward Dunphy" ( Icons-mini-file acrobat.gif PDF). Cth Gazette . 26 May 1949. p. 1517.
  30. ↑ "Mr. Justice Morgan resigns". The Canberra Times . 2 June 1960. p. 3. Retrieved 19 October 2018– via National Library of Australia.
  31. ↑ Ellis, J-A (2000). "Morgan, Sir Edward James Ranembe (1900–1977)". Australian Dictionary of Biography . Vol. 15. National Centre of Biography, Australian National University. ISSN   1833-7538 . Retrieved 7 December 2018.
  32. ↑ "Appointment of Percy Ernest Joske to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 43. 16 June 1960. p. 2091. Retrieved 19 October 2018– via National Library of Australia.
  33. ↑ Horner, J (2007). "Joske, Sir Percy Ernest (1895–1981)". Australian Dictionary of Biography . Vol. 17. National Centre of Biography, Australian National University. ISSN   1833-7538 . Retrieved 7 December 2018.
  34. ↑ "Appointment of Richard Moulton Eggleston to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 43. 16 June 1960. p. 2091. Retrieved 19 October 2018– via National Library of Australia.
  35. ↑ "Appointment of Reginald Allfree Smithers to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 4. 14 January 1965. p. 211. Retrieved 19 October 2018– via National Library of Australia.
  36. ↑ "Appointment of John Robert Kerr to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 96. 10 November 1966. p. 5599. Retrieved 19 October 2018– via National Library of Australia.
  37. ↑ Edwards, P (2017). "Kerr, Sir John Robert (1914–1991)". Australian Dictionary of Biography . National Centre of Biography, Australian National University. ISSN   1833-7538 . Retrieved 7 December 2018.
  38. ↑ "Appointment of John Angus Nimmo to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 39. 8 May 1969. p. 2685. Retrieved 19 October 2018– via National Library of Australia.
  39. ↑ "Appointment of Albert Edward Woodward to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 42. 25 May 1972. p. 1. Retrieved 19 October 2018– via National Library of Australia.
  40. ↑ "Appointment of Robert James Anning Franki to the Commonwealth Industrial Court". Commonwealth of Australia Gazette . No. 42. 25 May 1972. p. 2. Retrieved 19 October 2018– via National Library of Australia.
  41. ↑ "Appointment of John Bernard Sweeney to the Australian Industrial Court". Australian Government Gazette . No. 6. 15 January 1974. p. 12. Retrieved 7 December 2018– via National Library of Australia.
  42. ↑ Shaw, JW (2012). "Sweeney, John Bernard (1911–1981)". Australian Dictionary of Biography . Vol. 18. National Centre of Biography, Australian National University. ISSN   1833-7538 . Retrieved 7 December 2018.
  43. ↑ "Appointment of Phillip George Evatt to the Australian Industrial Court". Australian Government Gazette . No. 58. Australia. 16 July 1974. p. 2. Retrieved 7 December 2018– via National Library of Australia.
  44. ↑ "Appointment of Robert James Baldwin St John to the Australian Industrial Court". Australian Government Gazette . No. G15. Australia. 22 April 1975. p. 10. Retrieved 7 December 2018– via National Library of Australia.
  45. ↑ "Appointment of Raymond Moyle Northrop to the Australian Industrial Court". Australian Government Gazette . No. G12. Australia. 23 March 1976. p. 2. Retrieved 7 December 2018– via National Library of Australia.
  46. ↑ "Appointment of Francis Gerard Brennan to the Australian Industrial Court". Australian Government Gazette . No. S110. Australia. 25 June 1976. p. 1. Retrieved 7 December 2018– via National Library of Australia.

References

    This page is based on this Wikipedia article
    Text is available under the CC BY-SA 4.0 license; additional terms may apply.
    Images, videos and audio are available under their respective licenses.