09/12/2019 R v Kirby; Ex parte Boilermakers' Society of Australia - Wikipedia

R v Kirby; Ex parte Boilermakers'

Society of Australia
R v Kirby; Ex parte Boilermakers' Society of Australia,[1] known
R v Kirby; Ex parte
as the Boilermakers' Case, was a 1956 decision of the High Court of
Boilermakers' Society of
Australia which considered the powers of the Commonwealth Court of
Australia
Conciliation and Arbitration to punish the Boilermakers' Society of
Australia, a union which had disobeyed the orders of that court in relation
to an industrial dispute between boilermakers and their employer body,
the Metal Trades Employers' Association.[2]

The High Court held that the judicial power of the Commonwealth could
not be vested in a tribunal that also exercised non-judicial functions. It is a
major case dealing with the separation of powers in Australian law.
Court High Court of Australia
Full case The Queen v Kirby,
Contents name Dunphy, Ashburner and
Metal Trades
Background Employers Association;
Separation of Powers
Ex parte Boilermakers'
Facts
Society of Australia
Prior actions
The High Court application Decided 2 March 1956
Judgment of the High Court Citation(s) [1956] HCA 10 (http://w
Grant of both judicial and non-judicial powers ww.austlii.edu.au/au/ca
Is it the grant of judicial or of non-judicial powers which fails ses/cth/HCA/1956/10.h
Privy Council tml),
Aftermath (1956) 94 CLR 254 (htt
References p://eresources.hcourt.g
ov.au/downloadPdf/195
6/HCA/10)
Background Case history
Prior
Metal Trades
action(s)
Separation of Powers Employers
The High Court had consistently held that the judicial power of the Association v
Commonwealth could not be exercised by any body except a court Boilermakers
established under Chapter III of the Constitution or a state court invested Society of Australia
with federal jurisdiction. This was because the separation of judicial and (1955) 81 CAR 112
other powers was a fundamental principle of the Constitution.[4][5][6][7][8] (Orders)
Metal Trades
The High Court had held that the separation of powers did not prevent a
Employers
Federal court or Federal judge from discharging other functions.[9][10][11]
Association v
Latham CJ stated that:
Boilermakers
Society of Australia

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Thus, in my opinion, it is not possible to rely upon any (1955) 81 CAR 231
doctrine of absolute separation of powers for the purpose of (contempt of court)
establishing a universal proposition that no court or person
Case opinions
who discharges Federal judicial functions can lawfully
Majority Dixon CJ, McTiernan,
discharge any other function which has been entrusted to
Fullagar & Kitto JJ
him by statute. This proposition, however, does not involve
the further proposition that any powers or duties, of any Dissent Williams, Webb &
description whatsoever, may be conferred or imposed upon Taylor JJ
Federal courts or Federal judges. If a power or duty were in
its nature such as to be inconsistent with the co-existence of Attorney-General (Cth) v
judicial power, it might well be held that a statutory The Queen
provision purporting to confer or impose such a power or
duty could not stand with the creation of the judicial tribunal
or the appointment of a person to act as a member of
it.[9]:p 566–7

The power of the Arbitration Court was contained in the Commonwealth

Conciliation and Arbitration Act 1904 which relevantly provided that:

29. The Court shall have power-

(b) to order compliance with an order or award proved to the

satisfaction of the Court to have been broken or not observed Court Privy Council
Decided 19 March 1967
(c) by order, to enjoin an organization or person from
committing or continuing a contravention of this Act or a Citation(s) [1957] UKPC 4 (https://
breach or non-observance of an order or award; www.bailii.org/uk/case
s/UKPC/1957/1957_4.h
29A (1) The Court has the same power to punish contempts tml), [1957] AC 288;
of its power and authority, whether in relation to its judicial [1957] UKPCHCA 1 (htt
powers and functions or otherwise, as is possessed by the p://www.austlii.edu.au/a
High Court in respect of contempts of the High Court.[12] u/cases/cth/UKPCHCA/
1957/1.html),
(1957) 95 CLR 529
Facts Court membership
The Metal Trades Award was made by a conciliation commissioner on 16 Judge(s) Viscount Kilmuir LC,
January 1952 and included a prohibition on industrial action as follows: sitting Viscount Simonds,
Lord Morton of
(ba) (i) No organization party to this award shall in any way, Henryton, Lord Tucker,
whether directly or indirectly be a party to or concerned in Lord Cohen, Lord Keith
any ban, limitation or restriction upon the performance of of Avonholm and
work in accordance with this award. Lord Somervell of
(ii) An organization shall be deemed to commit a new and Harrow.
separate breach of the above sub-clause on each and every
day in which it is directly or indirectly a party to such ban,
limitation or restriction.[13]

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Members of the Federated Ironworkers Association (FIA) at the Morts Dock at Balmain, including FIA delegate Nick
Origlass, went on strike from 16 February 1955 seeking an increase in pay of A£1 per week. Other workers were
supporting the strikers by paying a levy of 8 shillings per week.[14] The strike was portrayed by the Communist Party of
Australia[15] as a contest between the union members and the National Secretary of the FIA, Laurie Short, who was a
grouper, part of the informal Industrial Groups set up by the Labor Party within trade unions to counter the perceived
threat of Communist Party influence.[16]

The Arbitration Court made orders against the FIA requiring it to comply with the Metal Trades Award.[17] The strike
continued and on 20 May 1955 the FIA was found to be in contempt of court despite genuine attempts to have the
employees return to work. No fine was imposed; however, the FIA had to pay legal costs of 160 guineas.[18]

Prior actions
Members of the Boilermakers' Society of Australia were among those
supporting the strikers by paying the levy of 8 shillings per week. They also
put a ban on repair work on the cargo ship Poul Carl,[14] and the Metal
Trades Employers Association sought an order requiring the Boilermakers
to comply with the Metal Trades Award. On 21 May 1955 the Arbitration
Court, Kirby, Dunphy and Ashburner JJ, held that it had no alternative but
to make the orders.[19] The Boilermakers were subsequently found to be in
contempt of court by permitting its members to contribute "strike pay",
thereby actively subsidising the strike and prolonging it. The Boilermakers The cargo ship MV Poul Carl
were fined A£500 and ordered to pay the employers' legal costs.[20]

The High Court application

The Boilermakers applied to the High Court for a writ of prohibition compelling Kirby, Dunphy and Ashburner and
the Metal Trades Employers Association, to appear before the High Court to show cause why they should not be
prohibited from further proceeding on orders.[21] The Boilermakers challenged the orders on the grounds that sections
of the Conciliation and Arbitration Act were invalid in that the Court of Conciliation and Arbitration was given non-
judicial powers (administrative, arbitral, executive and legislative powers) as well as judicial powers and the
separation of powers in Chapter III of the Constitution meant that the same body could not exercise judicial and non-
judicial powers. Eggleston QC appeared for the Boilermakers. Menzies QC appeared for the Arbitration Court and the
Attorney-General. Macfarlan QC appeared for the Metal Trades Employers Association.

Judgment of the High Court

The High Court held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised
non-judicial functions. It is a major case dealing with the separation of powers in Australian law.

Grant of both judicial and non-judicial powers

Dixon CJ, McTiernan, Fullagar and Kitto JJ held that is was:

impossible to escape the conviction that Chap. III does not allow the exercise of a jurisdiction which of
its very nature belongs to the judicial power of the Commonwealth by a body established for purposes
foreign to the judicial power, notwithstanding that it is organized as a court and in a manner which
might otherwise satisfy ss. 71 and 72, and that Chap. III does not allow a combination with judicial
power of functions which are not ancillary or incidental to its exercise but are foreign to it.[1]:p 296

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There were three key elements to the majority decision

1. The constitution embodied the separation of judicial power from legislative and executive power;
2. Chapter III & matters incidental thereto were the sole source of power for a federal court or judge; and
3. The arbitration power was foreign to the judicial power.[22]
Each of the dissenting judges took a slightly different approach. Williams J agreed that only a court could exercise
judicial power, but held that there was no express prohibition on a court exercising non-judicial powers, rejecting an
"implication in the Constitution arising from the vague concept of the separation of powers".[1]:p 306 Webb J held that
the Constitution should be interpreted liberally and the previous decisions of the High Court should be followed.
Taylor J saw difficulties in defining or identifying judicial functions, including the overlapping powers or functions
that could not be clearly defined as exclusively legislative, executive or judicial.[22]

Is it the grant of judicial or of non-judicial powers which fails

The majority, Dixon CJ, McTiernan, Fullagar and Kitto JJ, held simply that the Arbitration Court was "a tribunal
established and equipped primarily and predominantly for the work of industrial conciliation and arbitration" and
thus held it was the attachment of powers of judicial enforcement that were invalid.[1]:p 286

Williams J held that if the combination of powers was not permissible, it would be the arbitral functions that would be
invalid.[1]:pp 305–6 Webb J took a different approach, holding that while judicial power could only be exercised by
judges, the arbitral functions could be exercised by anyone, including by individuals who happened to be judges,
referred to as persona designata.[1]:pp 305–6 Taylor J did not address this issue.

Privy Council
On 1 June 1956 the Attorney General obtained leave to appeal to the Privy Council,[23] and was represented by the
Solicitor-General, Bailey QC. The Boilermakers filed submissions by Eggleston QC,[24] however they did not appear at
the hearing.[25]

The advice of the Privy Council was delivered by Viscount Simonds.[27] The Privy Council largely followed the
reasoning of the majority of the High Court.[28]

The question in whatever for it is stated is whether and how far judicial and non-judicial power can be
united in the same body. Their Lordships do not doubt that the decision of the High Court is right and
that there is nothing in Chap. III, to which alone recourse can be had, which justifies such a
union.[25]:p 539

The Privy Council concluded that "The true criterion is not what powers are expressly or by implication excluded from
the scope of Chapter III but what powers are expressly or by implication included in it".[25]:p 544

Aftermath
The significance of the case was that it restricted the use of judicial power only to Chapter III courts (under the
Australian Constitution), as well as establishing that these courts could exercise no other power. In this way, it
clarified the separation of powers doctrine in Australia.

The decision led to the abolition of the Commonwealth Court of Conciliation and Arbitration and the creation of two
new Australian industrial relations bodies: the Conciliation and Arbitration Commission (later known as the
Australian Industrial Relations Commission), whose limited-term members could create industrial awards and settle
interstate industrial disputes, and the Commonwealth Industrial Court, whose judges could interpret and enforce
awards made by the Commission.[29]
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There are few Privy Council decisions about the Australian Constitution that are cited in the High Court.[30] While the
decision in Boilermakers is often cited, it is High Court decision that is cited, with the notation that it was affirmed by
the Privy Council.[31]

References
1. R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 (http://www.austlii.edu.au/au/cases/cth/HCA/
1956/10.html), (1956) 94 CLR 254 (http://eresources.hcourt.gov.au/downloadPdf/1956/HCA/10) , High Court
(Australia).
2. "The Boilermakers' case: the separation of powers in Australia" (http://www.ruleoflaw.org.au/boilermakers-separati
on-powers/). Archived (https://web.archive.org/web/20160312191851/https://www.ruleoflaw.org.au/boilermakers-s
eparation-powers/) from the original on 12 March 2016.
3. Constitution (Cth) s 101 (http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s101.html).
4. New South Wales v Commonwealth [1915] HCA 17 (http://www.austlii.edu.au/au/cases/cth/HCA/1915/17.html),
(1915) 20 CLR 54 (http://www.austlii.edu.au/au/cases/cth/HCA/1915/17.pdf): the Inter-State Commission could
not exercise judicial power despite the words of section 101 of the Constitution,[3] because it was set up by the
executive and violated the conditions for being a Chapter III court.
5. Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56 (http://www.austlii.edu.au/au/case
s/cth/HCA/1918/56.html), (1918) 25 CLR 434 (http://www.austlii.edu.au/au/cases/cth/HCA/1918/56.pdf): there
was a distinction between judicial and arbitral functions, and the Arbitration Court could not exercise judicial
powers of the Commonwealth because the President of the court was appointed for 7 years and not life as
required by Chapter III of the Constitution.
6. British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4 (http://www.austlii.edu.au/au/cases/c
th/HCA/1925/4.html), (1925) 35 CLR 422 (http://www.austlii.edu.au/au/cases/cth/HCA/1925/4.pdf): a power of
appeal against an income tax assessment was part of the Judicial power of the Commonwealth which could not
be conferred upon a Board of Appeal.
7. Silk Bros Pty Ltd v State Electricity Commission (Vict) [1943] HCA 2 (http://www.austlii.edu.au/au/cases/cth/HCA/
1943/2.html), (1943) 37 CLR 1 (http://www.austlii.edu.au/au/cases/cth/HCA/1943/2.pdf): a power to determine
applications by landlords for recovery of premises and providing for the enforcement of the Board's orders were
an invalid attempt to confer judicial power on a body that was not a Federal Court.
8. R v Davison [1954] HCA 46 (http://www.austlii.edu.au/au/cases/cth/HCA/1954/46.html), (1954) 90 CLR 353 (htt
p://eresources.hcourt.gov.au/downloadPdf/1954/HCA/46) : a registrar was not an officer of the Bankruptcy
Court and a legislative attempt to confer upon a registrar the power of making a judicial order was therefore void.
9. R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10 (http://www.austlii.edu.au/au/cases/cth/HC
A/1938/10.html), (1938) 59 CLR 556 (http://www.austlii.edu.au/au/cases/cth/HCA/1938/10.pdf) at pp 564–566,
576, High Court (Australia)
10. Johnston Fear, & Kingham & the Offset Printing Co Pty Ltd v Commonwealth [1943] HCA 18 (http://www.austlii.ed
u.au/au/cases/cth/HCA/1943/18.html), (1943) 67 CLR 314 (http://www.austlii.edu.au/au/cases/cth/HCA/1943/18.p
df) a p 326, High Court (Australia)
11. Rola Co (Australia) Pty Ltd v Commonwealth [1944] HCA 17 (http://www.austlii.edu.au/au/cases/cth/HCA/1944/1
7.html), (1944) 69 CLR 185 (http://www.austlii.edu.au/au/cases/cth/HCA/1944/17.pdf) at p 210, High Court
(Australia)
12. Commonwealth Conciliation and Arbitration Act 1947 (http://www.austlii.edu.au/au/legis/cth/num_act/ccaaa19471
01947422/) (Cth) amended by Conciliation and Arbitration Act (No 2) 1951 (http://www.austlii.edu.au/au/legis/cth/
num_act/caaa21951181951319/) (Cth).
13. Metal Trades Award (1952) 73 CAR 325 at p 442 (16 January 1952) Commonwealth Court of Conciliation and
Arbitration.
14. "Mort's Dock" (http://nla.gov.au/nla.news-article236259303). Tribune: The People's Paper. Communist Party of
Australia. 2 March 1955. p. 3 – via National Library of Australia.
15. "Two lacings for Short" (http://nla.gov.au/nla.news-article236259454). Tribune: The People's Paper. Communist
Party of Australia. 10 August 1955. p. 9 – via National Library of Australia.

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16. Holt, S (December 2003). "Labor's Other Jack Ferguson" (https://web.archive.org/web/20070402060021/http://ww

w.quadrant.org.au/php/article_view.php?article_id=542). Quadrant. XLVII (12). Archived from the original (http://w
ww.quadrant.org.au/php/article_view.php?article_id=542) on 2 April 2007.
17. Metal Trades Employers Association v Federated Ironworkers Association (1955) 80 CAR 325 (23 March 1955)
Commonwealth Court of Conciliation and Arbitration.
18. Metal Trades Employers Association v Federated Ironworkers Association (1955) 81 CAR 102 (20 May 1955)
Commonwealth Court of Conciliation and Arbitration.
19. Breach of award: Metal Trades Employers Association v Boilermakers Society of Australia (1955) 81 CAR 112 (31
May 1955) Commonwealth Court of Conciliation and Arbitration. "Transcript and orders" (http://www.bailii.org/uk/c
ases/UKPC/1957/1957_4(image3).pdf) (PDF). pp. 14–26 – via Privy Council.
20. Contempt of court: Metal Trades Employers Association v Boilermakers Society of Australia (1955) 81 CAR 231
(28 June 1955) Commonwealth Court of Conciliation and Arbitration. "Transcript and orders" (http://www.bailii.org/
uk/cases/UKPC/1957/1957_4(image3).pdf) (PDF). pp. 37–55 – via Privy Council.
21. A writ of prohibition is one of the prerogative writs, which are traditionally brought in the name of the Monarch and
the person who must show cause is named as the defendant. In this usage ex parte means 'on the application of'
rather than its other use as a case heard in the absence of a party. Thus the case name means the Queen (R) v
the defendants (the judges and employers' association); on the application of (ex parte) the Boilermakers. The
order to show cause is a rule nisi, and if prohibition is granted, the rule is made absolute.
22. Thomson, D C. "Separation of Powers: The Boilermakers' Case" (http://www.austlii.edu.au/au/journals/SydLawR
w/1958/5.html). (1958) 2 Sydney Law Review 480.
23. "Order in council granting leave to appeal" (http://www.bailii.org/uk/cases/UKPC/1957/1957_4(image3).pdf)
(PDF). pp. 121–3 – via Privy Council.
24. "Case for the Respondent" (http://www.bailii.org/uk/cases/UKPC/1957/1957_4(image2).pdf) (PDF) – via Privy
Council.
25. Attorney-General (Cth) v The Queen [1957] UKPC 4 (https://www.bailii.org/uk/cases/UKPC/1957/1957_4.html),
[1957] AC 288; [1957] UKPCHCA 1 (http://www.austlii.edu.au/au/cases/cth/UKPCHCA/1957/1.html), (1957) 95
CLR 529, Privy Council (on appeal from Australia)
26. Gleeson, M (2008). "The Privy Council – An Australian Perspective" (http://www.hcourt.gov.au/assets/publication
s/speeches/former-justices/gleesoncj/cj_18jun08.pdf) (PDF).
27. At the time there was no provision for dissent or separate judgments in the Privy Council. Instead the advice to
the Queen was determined by a majority of judges who heard the appeal and one judge would be chosen to write
the judgment. Decisions of the Privy Council tended to be expressed on narrow grounds, a tendency attributed to
the need to reflect the agreement of the majority of judges.[26]
28. Zines, L (2008). The High Court and the Constitution (https://books.google.com/books?id=iaxIwndVi1UC&pg=PA2
14&lpg=PA214#v=onepage&q&f=false). Federation Press. pp. 214–5. ISBN 9781862876910.
29. Hanks, PJ (1990). Australian Constitutional Law, Materials and Commentary (4th ed.). Butterworths. p. 241.
30. Gleeson, M (2007). "The influence of the Privy Council on Australia" (http://www.hcourt.gov.au/assets/publication
s/speeches/former-justices/gleesoncj/cj_31may07.pdf) (PDF).
31. eg North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (http://www.austlii.edu.a
u/au/cases/cth/HCA/2015/41.html), (2015) 256 CLR 569, High Court.

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