Commonwealth Industrial Court

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]

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

Background
Main article: R v Kirby; Ex parte Boilermakers' Society of Australia

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
Position Name From To Term Comments Notes
Chief Judge Sir John Spicer 15 August 1956 1 November 1976 20 years, 78 days Formerly the Australian Attorney-General [9][10]
Judge Edward Dunphy 16 May 1949 31 December 1982 33 years, 229 days A 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 1952 31 May 1960 7 years, 301 days A judge of the Commonwealth Court of Conciliation and Arbitration,
judge of the Supreme Court (ACT)		 [9][30][31]
Sir Percy Joske CMG 3 June 1960 31 December 1977 17 years, 211 days Judge of the supreme courts of the Australian Capital Territory & Norfolk Island [32][33]
Sir Richard Eggleston 4 June 1960 30 June 1974 14 years, 26 days Judge of the supreme courts of the Australian Capital Territory & Norfolk Island [34]
Sir Reginald Smithers 20 January 1965 30 September 1986 21 years, 253 days Judge of the Supreme Court (ACT) [35]
(Sir) John Kerr 3 November 1966 22 May 1972 5 years, 201 days Formerly a judge of the Supreme Court (ACT),
appointed Chief Justice of NSW		 [36][37]
Sir John Nimmo 29 April 1969 30 June 1980 11 years, 62 days Judge of the Supreme Court (ACT) [38]
Edward Woodward 18 May 1972 31 July 1990 18 years, 74 days Judge of the Supreme Court (ACT) [39]
Robert Franki 23 May 1972 5 August 1986 14 years, 74 days Formerly a Deputy President of the Commonwealth Conciliation and Arbitration Commission,
judge of the Supreme Court (ACT)		 [40]
John Sweeney 30 November 1973 7 May 1981 7 years, 158 days Formerly a Deputy President of the Commonwealth Conciliation and Arbitration Commission,
judge of the Supreme Court (ACT)		 [41][42]
Phillip Evatt DSC 2 July 1974 28 February 1987 12 years, 241 days Judge of the supreme courts of the Australian Capital Territory & Norfolk Island [43]
Robert St John 15 April 1975 31 March 1985 9 years, 350 days Judge of the supreme courts of the Australian Capital Territory & Norfolk Island [44]
Ray Northrop 9 March 1976 31 August 1998 22 years, 175 days Judge of the Supreme Court (ACT) [45]
(Sir) Gerard Brennan 28 June 1976 12 February 1981 4 years, 229 days Judge of the Supreme Court (ACT), appointed to the High Court [21][46]

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. R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermaker's case) [1956] HCA 10, (1956) 94 CLR 254 , 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 from Australia).
  6. Conciliation and Arbitration Act 1956 (Cth) (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. "Appointments Industrial Court" ( PDF). Cth Gazette. 4 September 1956. pp. 2701A–2701D.
  10. "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. 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. 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 (64). 21 July 1966. p. 3680. Retrieved 26 December 2018 – via National Library of Australia.
  21. 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" ( 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. 15. Melbourne University Press. ISSN 1833-7538. Retrieved 7 December 2018 – via National Centre of Biography, Australian National University.
  32. "Appointment of Percy Ernest Joske to the Commonwealth Industrial Court". Commonwealth of Australia Gazette (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. 17. Melbourne University Press. ISSN 1833-7538. Retrieved 7 December 2018 – via National Centre of Biography, Australian National University.
  34. "Appointment of Richard Moulton Eggleston to the Commonwealth Industrial Court". Commonwealth of Australia Gazette (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 (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 (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. Melbourne University Press. ISSN 1833-7538. Retrieved 7 December 2018 – via National Centre of Biography, Australian National University.
  38. "Appointment of John Angus Nimmo to the Commonwealth Industrial Court". Commonwealth of Australia Gazette (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 (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 (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 (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. 18. Melbourne University Press. ISSN 1833-7538. Retrieved 7 December 2018 – via National Centre of Biography, Australian National University.
  43. "Appointment of Phillip George Evatt to the Australian Industrial Court". Australian Government Gazette (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 (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 (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 (S110). Australia. 25 June 1976. p. 1. Retrieved 7 December 2018 – via National Library of Australia.


References
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