R v Kirby; Ex parte Boilermakers' Society of Australia

R v Kirby; Ex parte Boilermakers' Society of Australia, known as the Boilermakers' Case, was a 1956 decision of the High Court of Australia which considered 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.

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.

The High Court had consistently held that the judicial power of the Commonwealth could not be exercised by any body except a court established under Chapter III of the Constitution or a state court invested with federal jurisdiction. This was because the separation of judicial and other powers was a fundamental principle of the Constitution.

The High Court had held that the separation of powers did not prevent a federal court or federal judge from discharging other functions. Chief Justice Latham stated that:

The power of the Arbitration Court was contained in the Commonwealth Conciliation and Arbitration Act 1904 which relevantly provided that:

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

Members of the Federated Ironworkers Association (FIA) at the Mort's Dock & Engineering Company's shipyard in Balmain, Sydney, 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. The strike was portrayed by the Communist Party of Australia 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.

The Arbitration Court made orders against the FIA requiring it to comply with the Metal Trades Award. 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.

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, 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, Justices Kirby, Dunphy and Ashburner, held that it had no alternative but to make the orders. 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 were fined A£500 and ordered to pay the employers' legal costs.

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. 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.

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.

Dixon, McTiernan, Fullagar and Kitto held that it was:

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.

Each of the dissenting judges took a slightly different approach. Williams 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". Webb held that the Constitution should be interpreted liberally and the previous decisions of the High Court should be followed. Taylor 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.

The majority opinion of Dixon, McTiernan, Fullagar and Kitto, 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.

Williams held that if the combination of powers was not permissible, it would be the arbitral functions that would be invalid. Webb 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. Taylor did not address this issue.

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

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

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".

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.

There are few Privy Council decisions about the Australian Constitution that are cited in the High Court. 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.