Boilermaker's Case

 R v Kirby; Ex parte Boilermakers' Society of Australia

Citation:	94 CLR 254 [PDF], [1956] ALR 163, [1956] HCA 10, 29 ALJ 658, 30 ALJ 614 Popular Case Name:	Boilermakers' Case Court:	High Court of Australia (AUS) Judges:	Dixon, McTiernan, Williams, Webb, Fullagar, Kitto, Taylor Judgment Date:	2/3/1956

This case dealt with the issue of whether a Chapter III court could possess non-judicial power. Chapter III, i.e., ss 71 to 80 of the Constitution, deals with the Judicature. The Commonwealth Court of Conciliation and Arbitration was established by the Conciliation and Arbitration Act 1904. s 51 (xxxv) of the Constitution grants Parliament the power to make laws with respect to:

“conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;”

Paragraphs (b) and (c) of s 29 (1) of the Conciliation and Arbitration Act 1904-52 empower the court to order compliance with an order or award broken or not observed and to enjoin any organization or person from committing or continuing any contravention of the Act, and s 29A confers upon the court the same power to punish for contempt of its powers and authorities, judicial or otherwise, as is possessed by the High Court in respect of contempt of that Court, provide for the exercise by such court of powers essentially judicial in character.

However the Court was vested by the Act with executive power, i.e., it could also conciliate and arbitrate awards that would apply in the future. In the Boilermakers’ case, the prosecution argued that it is not constitutionally permissible for the legislature to vest in a body having non-judicial functions any part of the judicial power of the Commonwealth. A strictly judicial body may have ancillary to its judicial functions and in aid thereof, be given some functions of a legislative character, but where the body is primarily established for non-judicial purposes it cannot be vested with part of the judicial power of the Commonwealth.

The majority of the High Court (Dixon CJ, McTiernan, Fullagar and Kitto JJ) agreed with the prosecution. Williams, Webb and Taylor JJ dissented.

As a result of this case, the Commonwealth was forced to break up the Commonwealth Court of Conciliation and Arbitration, and establish 2 separate bodies, namely:

(a) a Conciliation and Arbitration Commission (now the Australian Industrial Relations Commission constituted under the Workplace Relations Act); and

(b) the function of enforcing and adjudicating disputes concerning existing award entitlements (which is clearly a judicial power) being vested in the Federal Court (note that it was previously vested in a specially created Industrial Relations Court, but this was abolished by the Workplace Relations Act when the Coalition came to power in 1996).