Background R v Kirby; Ex parte Boilermakers' Society of Australia

1 background

1.1 separation of powers
1.2 facts
1.3 prior actions
1.4 high court application

background
separation of powers

the high court had consistently held judicial power of commonwealth not exercised body except court established under chapter iii of constitution or state court invested federal jurisdiction. because separation of judicial , other powers fundamental principle of constitution.

the high court had held separation of powers did not prevent federal court or federal judge discharging other functions. latham cj stated that:

thus, in opinion, not possible rely upon doctrine of absolute separation of powers purpose of establishing universal proposition no court or person discharges federal judicial functions can lawfully discharge other function has been entrusted him statute. proposition, however, not involve further proposition powers or duties, of description whatsoever, may conferred or imposed upon federal courts or federal judges. if power or duty in nature such inconsistent co-existence of judicial power, might held statutory provision purporting confer or impose such power or duty not stand creation of judicial tribunal or appointment of person act member of it.

the power of arbitration court contained in conciliation , arbitration act 1904 relevantly provided that:

29. court shall have power-

(b) order compliance order or award proved satisfaction of court have been broken or not observed

(c) order, enjoin organization or person committing or continuing contravention of act or breach or non-observance of order or award;

29a (1) court has same power punish contempts of power , authority, whether in relation judicial powers , functions or otherwise, possessed high court in respect of contempts of high court.

facts

the metal trades award made conciliation commissioner on 16 january 1952 , included prohibition on industrial action follows:

{ba) (i) no organization party award shall in way, whether directly or indirectly party or concerned in ban, limitation or restriction upon performance of work in accordance award.

(ii) organization shall deemed commit new , separate breach of above sub-clause on each , every day in directly or indirectly party such ban, limitation or restriction.

members of federated ironworkers association (fia) @ morts dock @ balmain, including fia delegate nick origlass, went on strike 16 february 1955 seeking increase in pay of a£1 per week. other workers supporting strikers paying levy of 8 shillings per week. strike portrayed communist party of australia, contest between union members , national secretary of fia, laurie short, grouper, part of informal industrial groups set labor party within trade unions counter perceived threat of communist party influence.

the arbitration court made orders against fia requiring comply metal trades award. strike continued , on 20 may 1955 fia found contempt of court despite genuine attempts have employees return work. no fine imposed fia had pay legal costs of 160 guineas.

prior actions

the cargo ship mv poul carl

members of boilermakers society of australia among supporting strikers paying levy of 8 shillings per week. put ban on repair work on cargo ship poul carl. , metal trades employers association sought order requiring boilermakers comply metal trades award. on 21 may 1955 arbitration court, kirby, dunphy , ashburner jj, held had no alternative make orders. boilermakers subsequently found in contempt of court permitting members contribute strike pay , thereby actively subsidiing strike , prolonging it. boilermakers fined a£500 , ordered pay employers legal costs.

the high court application

the boilermakers applied high court writ of prohibition compelling kirby, dunphy , ashburner , metal trades employers association, appear before high court show cause why should not prohibited further proceeding on orders. boilermakers challenged orders on grounds sections of conciliation , arbitration act invalid in court of conciliation , arbitration given non-judicial powers (administrative, arbitral, executive , legislative powers) judicial powers , separation of powers in chapter iii of constitution meant same body not exercise judicial , non-judicial powers. eggleston qc appeared boilermakers. menzies qc appeared arbitration court , attorney-general. macfarlan qc appeared metal trades employers association.