The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employees Association
4 CLR 488(Judgment by: O'Connor J)
The Federated Amalgamated Government Railway and Tramway Service Association
vThe New South Wales Railway Traffic Employees Association
Judges:
Griffith CJ
Barton J
O'Connor J
Subject References:
Constitutional law
Industrial law
Commonwealth industrial laws
Validity
State instrumentality
Interference with
Limits of power
Regulation of State railways wages and conditions of employment
Jurisdiction of President of Commonwealth Court of Conciliation and Arbitration
Legislative References:
Constitution (Cth) - ss 51, 98, 101, 102, 104
Conciliation and Arbitration Act 1904 (Cth) (No 13) -
Judgment date: 17 December 1906
Sydney
Judgment by:
O'Connor J
O'CONNOR J. There is nothing in the preliminary objection. The Act no doubt distinguishes between the cases in which the President acts ministerially, as in mediating between industrial disputants not judicially before him under s 16, or in annulling some act of the registrar under s 17, and the cases in which he acts judicially. But Mr. Shand's objection is founded on the view that the President has two separate judicial capacities, one as President constituting "The Court" as described in the Act, the other as President acting judicially in those matters which the Act expressly empowers the President to deal with. It must be admitted that in the latter case equally as in the former the President constitutes a judicial tribunal-but it is contended that in the former case that tribunal is "The Court" and in the latter it is not "The Court" but another tribunal which is described as "The President." There is only one judicial tribunal constituted by the Act. Section 4 defines "The Court" as "The Commonwealth Court of Conciliation and Arbitration constituted pursuant to this Act." The Court is constituted by s 11 in the following words:-
"There shall be a Commonwealth Court of Conciliation and Arbitration, which shall be a Court of Record, and shall consist of a President."
Whenever the President sits judicially he constitutes "The Court," and he cannot sit judicially without constituting "The Court." There is no warrant in the Act for the contention that the President sitting as a tribunal hearing one class of judicial proceedings is "The Court," but when sitting as a tribunal hearing another class of judicial proceedings he is not "The Court." Reference was made to sec. 32 which enables certain matters to be decided by the "President sitting in Chambers." A Court ordinarily speaking conducts its business in public-but it has always been the practice in the several jurisdictions of the Supreme Court for Judges, when they so deem it advisable, to deal with the class of proceedings mentioned in s 32 in Chambers either in public or in private. It is to make it quite clear that this method can be followed in the Federal Arbitration Court that similar power has been expressly conferred on the President by that section. But whether the President sits in Court in the ordinary sense of the word or in his own Chambers under that section, he constitutes the Court under the Act. In other words, whenever the President sits judicially he constitutes the Court, and as he sits judicially in reviewing under s 17 a decision of the registrar, the proceeding on that review is a "proceeding before the Court" within the meaning of s 31, and he may state a case for the opinion of the High Court on any question of law arising in that proceeding. As to the other matters mentioned by my learned brother the Chief Justice, I entirely agree with his observations.
[Note: Leave to intervene was subsequently granted to the Commonwealth and to the State of Victoria.]