11/12/2019 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
R v Kirby; Ex parte
Australia,[1] known as the Boilermakers' Case, was a
Boilermakers' Society of
1956 decision of the High Court of Australia which considered
Australia
the powers of the Commonwealth Court of 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 Court High Court of Australia
with the separation of powers in Australian law. Full case The Queen v Kirby,
name Dunphy, Ashburner and
Metal Trades
Employers Association;
Contents Ex parte Boilermakers'
Background Society of Australia
Separation of Powers Decided 2 March 1956
Facts Citation(s) [1956] HCA 10 (http://w
Prior actions ww.austlii.edu.au/au/ca
The High Court application ses/cth/HCA/1956/10.h
Judgment of the High Court tml),
Grant of both judicial and non-judicial powers (1956) 94 CLR 254 (htt
Is it the grant of judicial or of non-judicial powers which p://eresources.hcourt.g
fails ov.au/downloadPdf/195
Privy Council 6/HCA/10)

Aftermath Case history

References Prior
Metal Trades
action(s)
Employers
Association v
Background Boilermakers
Society of Australia
(1955) 81 CAR 112
Separation of Powers
(Orders)
The High Court had consistently held that the judicial power Metal Trades
of the Commonwealth could not be exercised by any body Employers
except a court established under Chapter III of the Association v
Constitution or a state court invested with federal jurisdiction. Boilermakers
This was because the separation of judicial and other powers Society of Australia
was a fundamental principle of the Constitution.[4][5][6][7][8]
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The High Court had held that the separation of powers did not (1955) 81 CAR 231
prevent a Federal court or Federal judge from discharging (contempt of court)
other functions.[9][10][11] Latham CJ stated that: Case opinions
Majority Dixon CJ, McTiernan,
Thus, in my opinion, it is not possible to rely upon
Fullagar & Kitto JJ
any doctrine of absolute separation of powers for
the purpose of establishing a universal proposition Dissent Williams, Webb &
that no court or person who discharges Federal Taylor JJ
judicial functions can lawfully discharge any other
function which has been entrusted to him by Attorney-General (Cth) v
statute. This proposition, however, does not The Queen
involve the further proposition that any powers or
duties, of any description whatsoever, may be
conferred or imposed upon Federal courts or
Federal judges. If a power or duty were in its
nature such as to be inconsistent with the co-
existence of judicial power, it might well be held
that a statutory 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
Court Privy Council

The power of the Arbitration Court was contained in the Decided 19 March 1967
Commonwealth Conciliation and Arbitration Act 1904 which Citation(s) [1957] UKPC 4 (https://
relevantly provided that: www.bailii.org/uk/case
s/UKPC/1957/1957_4.h
29. The Court shall have power- tml), [1957] AC 288;
[1957] UKPCHCA 1 (htt
(b) to order compliance with an order or award p://www.austlii.edu.au/a
proved to the satisfaction of the Court to have been u/cases/cth/UKPCHCA/
broken or not observed 1957/1.html),
(1957) 95 CLR 529
(c) by order, to enjoin an organization or person
from committing or continuing a contravention of Court membership
this Act or a breach or non-observance of an order Judge(s) Viscount Kilmuir LC,
or award; sitting Viscount Simonds,
Lord Morton of
29A (1) The Court has the same power to punish Henryton, Lord Tucker,
contempts of its power and authority, whether in Lord Cohen, Lord Keith
relation to its judicial powers and functions or of Avonholm and
otherwise, as is possessed by the High Court in Lord Somervell of
respect of contempts of the High Court.[12] Harrow.

Facts
The Metal Trades Award was made by a conciliation commissioner on 16 January 1952 and
included a prohibition on industrial action as follows:

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(ba) (i) No organization party to this award shall in any way, whether directly or
indirectly be a party to or concerned in any ban, limitation or restriction upon the
performance of work in accordance with this award.
(ii) An organization shall be deemed to commit a new and 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]

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 The cargo ship MV Poul Carl
court by permitting its members to contribute "strike pay",
thereby actively subsidising the strike and prolonging it. The
Boilermakers 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

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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

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]

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