Boilermakers Case PDF

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Case Name and Citation R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Material Facts The Boilermakers’ Society of Australia (BSA) and the Metal Trades Employers’ Association (MTEA) were parties to an arbitration process in the Commonwealth Conciliation and Arbitration Court (Arbitration Court), who determined employment conditions for boilermakers in Australia. The MTEA deemed BSA in breach of those conditions and raised the issue with the Arbitration Court, the Court ordered the BSA to comply. The Society ignored those orders and ultimately was the Court found the BSA guilty of contempt of Court and penalised the Society. The Arbitration Court was brought into being by the Commonwealth Conciliation and Arbitration Act 1903 (Cth). However, the principal legislation of the Arbitration Court was amended significantly over the decades between the Court’s enactment and the Boilermakers’ Case. These amendments had altered the Court’s form increasing its judicial powers. How the Case Came before the High Court? Proceedings commenced in the High Court according to section 30 of the Judiciary Act 1903 (Cth). The BSA acting as the plaintiff made an application to the High Court and were awarded an order nisi for a writ of prohibition directed to the Justices of the Arbitration Court and the MTEA (respondents). The Attorney-General of the Commonwealth joined as a respondent, intervening by leave. Statement of Issues The High Court had to contend as to whether it was Constitutionally valid for a Federal Institution to be vested with both non-judicial and judicial power? Whether the Arbitration Court was primarily a Judicial or non-judicial body? And whether the separation of powers doctrine existed within the Commonwealth Constitution. Submissions Applicant’s Submissions R. M. Eggleston Q.C. submitted on behalf of the applicant that it was not constitutionally permissible for the legislature to vest in a body having non-judicial functions any part of the judicial power of the Commonwealth, and such had been vested in the Arbitration Court. Authority may be granted to give a judicial body non-judicial power as necessary to give effect to judicial power. However, amalgamating a Federal Institution with judicial and nonjudicial power is an infringement of judicial independence, prescribed by the provisions of chapter III of the Constitution and contrary to the separation of powers doctrine provided

for in the Constitution. The Arbitration Court was established for the prevention and settlement of industrial disputes by conciliation and arbitration, according to section 51(xxxv) of the Constitution, with power to act an industrial arbiter, specifying industrial conditions, a non-judicial character; and a power to enforce compliance with its orders, a power of judicial character. Its primary nature can be considered to be non-judicial and the vestment of additional judicial functions is ultra vires and invalid and so are the Court orders against BSA.

Respondent’s Submissions D. I Menzies Q.C. on behalf of the Judges of the Arbitration Court and the Attorney General and B.P. Macfarlan Q.C on behalf of the MTEA submitted that the strict separation of powers doctrine had not formed part of the Constitution of this country. Nowhere in the provisions of the Constitution does it provide that the organs of government must adhere to strict separation. Previously case law rejects the proposition that the Parliament cannot confer both judicial and non-judicial power upon a federal institution, or that the jurisdiction of the Federal Courts is exhausted by the provisions of chapter III of the Constitution.

Outcome and Orders The majority found (4:3) that the Arbitration Court was a tribunal established and equipped primarily and predominantly for the work of industrial conciliation and arbitration. A nonjudicial entity attached with powers of judicial enforcement. This was held by the court to be beyond the provisions of Constitution, contra to the separation of powers doctrine which exists with the Australian Constitution and the provisions of Chapter III, which are to be viewed as exhaustive provisions for what functions may be permitted to be vested within a Federal Judicature. Furthermore, judicial power could not be vested in a federal institution which also exercised non-judicial functions. The Arbitration Court, established by The Commonwealth Conciliation and Arbitration Act is contra to the provisions of the Constitution. The order nisi for a writ of prohibition should be made absolute in respect of both orders made against the plaintiff. Reasoning Majority Dixon C.J., McTiernan, Fullagar, and Kitto JJ interpreted the primary function of the Arbitration Court as being for non-judicial purposes, according to section 51(xxxv) of the Constitution and the attachment of judicial power onto the Court was only to effectuate its primary function. This action was invalid on the basis that the Constitution does not allow the use of Judicial power established under chapter III to be conferred upon a body whose

purpose is not the exercise of judicial power, despite the body being given the character of a Court.1 Doing so would violate the separation of powers doctrine and the provisions of Chapter III. While the separation of powers doctrine does not appear explicit within the text of the Constitution, its inference is naturally felt from the Constitution's framing, being separated into three distinct governmental organs. Chapter I vesting legislative power, Chapter II vesting executive power, and Chapter III vesting judicial power. The Parliament’s role overlapping to a degree within chapters I and II and not III, reveals the independent function of the judiciary, opposing the legislative and executive government. The existence of Chapter III, makes it clear that only Judicial power could only be vested in Federal Courts established under chapter III, for without chapter III no limitations would be placed upon the appointment of judicial authority.2 The provisions of chapter III, written in the affirmative nature, promote the interpretation that the provisions are to be conclusive and deliberately limiting. Minority Williams J agreed that only a Chapter III Court could exercise judicial power, however, dispensed with the order nisi for the prohibition because there were no express limitations on a court exercising non-judicial power. The separation of powers doctrine did not apply to the Australian Constitution and previous case law supported this.3 Webb J dissented dismissing the application for the order nisi for a writ of prohibition, holding that following previous decisions of the High Court, the Constitution’s provisions were to be applied liberally. Adherence to a narrow interpretation or strict separation of powers doctrine would disrupt the practical function of the Constitution. Taylor J dissented too, holding that non-judicial and judicial functions contain significant overlap, the combination in one tribunal of both functions has been a well-recognised concept for over half a century and there exist no clear provisions within the Constitution which denies the place these two functions within a Court.4

1 New South Wales v The Commonwealth (1915) 20 CLR 54 2 (1915) 20 CLR 54; Waterside Workers Federation of Australia V. J. W. Alexander Ltd (1918) 24 CLR 434. (2); British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1925) 35 CLR 3 Stemps Case (1917) 23 CLR 266; (1938) 59 CLR 572 (1915) 19 CLR 629 (2) and (1926) 37 CLR 432

4 William Shrubb, The Boilermakers’ case: the separation of powers in Australia (17 May 2020) < https://www.ruleoflaw.org.au/boilermakers-separation-powers/ >

Significance of the Case While the decision in the Boilermaker’s case was decided by a bare majority, the case was heard later on appeal to the Privy Council, where the decision of the High Court was upheld conclusively. The Case is significant because it restricted the use of Judicial power only to chapter III Courts and limited non-judicial powers, foreign to judicial powers, from being attached to the Courts created by or under chapter III. The case also represented an important step forward in the recognition of the separation of powers doctrine in Australia, creating a shining light to guide judicial independence and integrity at the federal level. However, growing exceptions to the Boilermakers’ principle is eroding the significance of the Case. The biggest exception to the Boilermakers’ principle being the ‘person designata’ rule, which permits non-judicial functions to be conferred onto federal Judges in their personal capacity, rather than in their capacity as Judge. This rule allows Federal Judges to lead administrative tribunals like the AAT. Another limitation of the significance of the Case is that the principles it formulates do not apply to State Courts, as State governments contain their separate constitutions....