Boilermakers CASE SUMMARY PDF

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Summary of the boilermakers case module including facts, decision, judgement...

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Drafting history of the Constitution and particularly behind Chapters I, II and III.  Consittution largely based by that written by Clark (Tasmanian) – heavily based on US Consittution (particular chapters 1-3, legislature, executive and judiciary)  American framers heavily influenced by writings of Montesquieu when they drafted their constitution and they had fundamental objective of desire to disperse, limit and check gov. power  Mechanism to do so = separation of functions of the three branches of government  Remember the history of drafting ch 1 2 and 3 in our constitution Earlier decisions on judicial power and federal courts: Remember that there were earlier decisions that influenced the Boilermaker decision around the separation of powers. Three key decisions: 

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New South Wales v Commonwealth (1915) 20 CLR 54 (Wheat Case): Interstate Commission was not a Chapter III Court and could not exercise federal judicial power. o Looked at the interstate commission (established under s 121 of constitution to adjudicate and look over trade and commerce functions of the constitution) o Remember these provisions were important in bringing Australia together as a federation o Interstate commission was not a court – separate body o HCA found that because it was not a court, it could not exercise judicial power – could not decide disputes between parties o It could administer some of the trade and commerce provisions, but it could not settle disputes about these provisions o Early case where HCA creates an initial limit on the power of the government to give non-judicial bodies judicial power Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 (Alexander's Case): Commonwealth Arbitration Court was not a Chapter III Court and could not exercise federal judicial power. o Bit more relevant o Follows from the Wheat case o HCA considered the commonwealth arbitration court – body established to do two functions: 1. To arbitrate between employers and employees, and to issue awards and orders, 2. Power to determine disputes under those awards o HCA looked at this body and said it is called a court, but not established under ch 3 of the constitution o Members are not appointed in accordance with s 72 of the constitution and it has these primary functions of arbitrating primary disputes o Because it is not a court under ch 3, just like prev. commission, the HCA said it cannot exercise judicial power o That function is only given to courts o Reinforcement of the rule that courts that are established under ch 3 of the constitution are the bodies that have to exercise judicial power Re Judiciary & Navigation Acts (1921) 29 CLR 257: High Court cannot issue "advisory opinions" as no dispute for the Court to resolve. o Slightly different rule that was applied

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HCA looked at a provision that gave it power to issue advisory opinions – these are opinions that allow the court to advise the parliament before bills are passed about whether the bill will be constitutional The court found that you couldn’t give this power to a court – they said it wasn’t a matter so as to engage the court’s jurisdiction so as under s 75 and 76 of the constitution There was no dispute for the court to resolve – so it was not the type of jurisdiction that the constitution gave the courts

So, we see the courts developing two lines of jurisprudence in these earlier three cases 1. Comes from wheat and alexanders case – restricts non-judicial bodies from exercising judicial power 2. Restrict the powers that can be given powers to federal courts Both are brought up in the boilermakers’ case Third point we need to know: History of the Commonwealth Court of Conciliation and Arbitration:  Successor of Commonwealth Arbitration Courts.  Members of the Court were given judicial tenure consistent with section 72 of the Constitution.  Given judicial and non-judicial functions. 

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Before boilermakers – parliament responded to the Alexander’s case decision, by giving the members of the court judicial tenure – they brought the court’s structure into alignment with the requirements of s 76 of the constitution The body that was considered in boilermakers had members who were called judges that were consistent with s 72 of the constitution Body has been created for commonwealth court conciliation and arbitration, meets the requirements of s 72 of the constitution of being a court, but as we will see, it was given judicial and non-judicial functions

Structure of the decision  Extract mainly has the majority decision  When the outcome was decided in 1956, boilermakers has been repeatedly enforced in subsequent decision  Forms the foundation of separation of powers jurisprudence now Majority:  First thing to do – locate the facts of the case – gives rise to the legal issues of the case  Facts are relatively there on page 266  The case revolves around: Facts:

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Employees’ association (a union) called the Boilermakers society It had allegedly acted in breach of a no. of awards and orders given by the commonwealth court of conciliation and arbitration The ocurt had been asked by the metal trade employers’ association to make orders for the boilermakers society to comply with the award and find them guilty of contempt and fine it and make an order for costs against it BS made application in the HCA for an order nisi seeking a writ of prohibition against the court Lots of technical legal concepts: o Writ of prohibition = prerogative writ (administrative law order) that prevents a government officer/body from exercising a power  In boilermakers, the writ was sought against judges of the court of conciliation and arbitration to prevent it from issuing a number of orders o Order nisi: a court order that does not have any force until a condition is met (this condition will often be the finalisation of a judgement)  In boilermakers, the order nisi is conditional on the HCA determination of the constitutional issue in this case

The constitutional issue  Clear statement in the majority judgement of the legal issue “The attack upon the jurisdiction to make these orders is based upon the ground that they could be made only in the exercise of the judicial power of the Commonwealth and that the Constitution does not authorize the legislature to establish a tribunal which at once performs the function of industrial arbitration and exercises part of the judicial power of the Commonwealth."   

Page 266 of the judgement Decision goes on to explain in their view, at least the power of the CCCA to punish for contempt is an exercise of the judicial power of the commonwealth That is why they say this legal question/issue arises on the facts that have come before them

The Reasoning of the Court The legal principle that boilermakers established is usually referenced in relation to two limbs:  

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Limb 1: A body that is not a Chapter III Court cannot exercise the judicial power of the Commonwealth. Limb 2: A federal Chapter III Court may only exercise the judicial power of the Commonwealth and powers that are ancillary or incidental thereto. Some exceptions to these limbs

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Read the majority decision and see how the judges got to these limbs, and how they applied them to the facts of the case

LIMB 1: PAGE 270 "... it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s 71 and constituted in accordance with s 72 or a court brought into existence by a State."    

Remember the first limb was well established before this case in wheat and alexander’s Judges addressed the first limb and spend pages 267-270 explaining the reasoning behind the limb before concluding the above Judges own language a statement of the first limb Look at pages before 270 for the reasons

Two key reasons: The first reason is the position of the judiciary and its responsibility in Australia's federal system for determining disputes about the division of powers between the different levels of government. The majority says that to fulfil this role, the judicial power must be defined, the composition and construction of the courts must be prescribed and their jurisdiction carefully ascertained.  The second is based on how the drafters of the Parliament about this purpose: by prescribing, in great detail in the provisions of Chapter III (and the majority set these out on pages 268-269) how Chapter III courts are constituted and their appellate and original jurisdiction, the Court says... Page 269: "... no resort can be made to judicial power except under or in conformity with ss 7180”. Page 270: "Indeed, to study Chapter III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested." 

LIMB 2: PAGE 271 “There is, of course, a wide difference - and probably it is more than one of degree - between a denial on the one hand of the possibility of attaching judicial powers accompanied by the necessary curial and judicial character to a body whose principal purpose is non-judicial in order that it might better accomplish or effect that nonjudicial power, and, on the other hand, a denial of the possibility of adding to the judicial powers of a court set up as part of the national judicature some non-judicial powers that are not ancillary but are directed to a non-judicial purpose. But if the latter cannot be done clearly the former must be then completely out of the question." Reasons for the second limb: The first reason that the Court gives is the 'text of the Constitution requires this conclusion, that it, the careful provisions that create and give jurisdiction to Federal Courts in Chapter III

imply that other powers and responsibilities cannot be given to them. Thus, the majority says: Text of the Constitution: "It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive." (page 272) The second reason is rooted in the structure of the Constitution, and particularly the structure of Chapters 1, 2 and 3, which establish the legislature, the executive and the judicature separately. The majority states "It would be difficult to treat it as a mere draftsman's arrangement." (Williams) Structure of the Constitution: “If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical inferences from Chaps I, II and III, and the form and contents of ss 1, 61 and 71." (page 275) But the majority has to deal with the fact that the Australian constitutional system is fundamentally different from the US system: our executive and legislature are fused through the practice of responsible government, and, indeed, the constitutional requirement that ministers sit in Parliament (s 64). The majority dismisses this distinction, it says: Asymmetrical separation of powers: "... that is a matter of the relation between the two organs of government and the political operation of the institution. It does not affect legal powers." (Page 275) Finally, and to support its conclusions in relation to the limited affect of RG on the separation of JP, the majority refers again to the role of the judiciary in a federal system. They explain that Australia adopted a federal system from the US, and part of that system is an independent judiciary as the ultimate arbiter of determining the boundaries of federal division of power. Federal role of the judiciary (page 276).   

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Rationale that lies behind the development of the two limbs was largely direction to the federal system (division and separation of powers) Judges concerned about the importance of insulating the court of government and political interference in the judicial role We see when we continue to study the sep. of powers is that the principles in boilermakers have subsequently acquired a particularly strong focus on individual liberty The rationale and the foundation for the sep. of powers have expanded The judges have turned to the courts and the importance of judicial independence in an effort to bring some protection to individual liberty

Major questions following Boilermakers

Limb 1: A body that is not a Chapter III Court cannot exercise the judicial power of the Commonwealth. Limb 2: A federal Chapter III Court may only exercise the judicial power of the Commonwealth and powers that are ancillary or incidental thereto. 

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We see that both limbs if we are going to apply them to a factual circumstance requires us to answer two questions: o What is a ch 3 court? When is a body a ch 3 court? o When is a power the judicial power of the commonwealth? Know that the second question has proven to be very technical and given rise to a large amount of case law

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Had to come back to the facts and work out whether the CCCA in making the orders was in breach of the limbs Firstly worked out whether CCCA was a Ch III court In 1926 after the alexander’s case the commonwealth parliament had amended the legislation establishing the court and changed it so that its members (judges of the court) now had life tenure in accordance with s 72 of the constitution The question was whether this enough to make it a ch III court There are quite a no. of pages that go through the history of the statutory provisions of the CCCA They start on pg 282 and the history continues to 288 Don’t read it in great detail but focus on the conclusion of the majority having considered those statutory provisions You will see that conclusion at the end of pg. 288-289 Trick to know reading cases -there are some parts that are important to read every paragraph The conclusion is at pg. 288 end and across to pg. 289

They found: It was not a Chapter III Court because it was established under $ 51(xxxv) of the Constitution, the interstate industrial relations arbitration & conciliation power, and it was not created for the purpose of the exercise of judicial power of the Commonwealth. Therefore, the majority held that while it was open to the legislature to give it many features of a Court under this power, it was not open to the legislature, based on the first limb of Boilermakers, to confer on it powers that fall within the judicial power of the Commonwealth. Exercising judicial power of the commonwealth  Once the majority determined that it was not a Ch III court, the next question was whether it was acting in breach of the first limb principle – was it exercising judicial power of the commonwealth in breach of that limb Majority started its decision by saying, at the very least, the contempt power that the CCCA was exercising was judicial power of the commonwealth

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So it had already made a decision that at least one order was an exercise of judicial power Right at the end of the judgement (298-299) the majority then considers the other powers the CCCA was exercising (enforcement powers for the arbitrator awards and orders)

They found: They are judicial powers of the Commonwealth and therefore can't be conferred on the Commonwealth Court of Conciliation and Arbitration

Impact of the case “But it is one thing to feel the great strength of the reasons for this conclusion which appear on the face of the Constitution and receive such confirmation from every admissible consideration of history of analogy and principle. It is another thing to give effect to it by holding at this date that the enactment was invalid...” (page 292)...