Judges & conciliators

Updated time

Last updated

21 March 2017

Justice Dethridge Commonwealth Court

of Conciliation and Arbitration 1925–1938

In 1918, in what became known as Alexander's Case, the High Court cast doubt as to whether the Commonwealth Court of Conciliation and Arbitration could exercise federal judicial power – specifically the enforcement of its own awards.

The High Court found that the Arbitration Court was not a federal court because its judges did not have life tenure (they were appointed for a period of seven years) as was then required under s.72 of the Constitution.

In 1926 the Australian Parliament passed legislation reconstituting the Commonwealth Court of Conciliation and Arbitration to comprise a Chief Judge and other judges all appointed for life.

The legislation contained:

  • explicit reference to the basic wage
  • provision for the Commonwealth to intervene 'in the public interest' in basic wage and hours cases
  • provision for the appointment of lay Conciliation Commissioners to assist parties to reach agreements (at first only one was appointed and his term came to an end in 1934).

Further legislative change came in 1947.

The role of Conciliation Commissioners was enhanced, but kept separate from that of the judges in the Court. The Court was confined to judicial functions (interpretation and enforcement) and arbitration in respect of four specified matters: basic wage, minimum female wage, hours of work and paid annual leave. All other matters were left for Conciliation Commissioners. By 1947 the number of conciliation commissioners had risen to 17.