R v Kirby; Ex Parte Boilermakers' Society of Australia (1956) 94 CLR 254

[The Boilermakers Society (a union) imposed bans in contravention of their award. The
Commonwealth Court of Conciliation and Arbitration ordered the union to comply with its award
and cease industrial action. When some members failed to comply, the Court fined the Society for
contempt of its earlier order. The Society challenged both orders in the High Court, arguing that
federal judicial power (the enforcement of awards) could not validly be vested in the Court whose
principal functions were non-judicial. The legislation was held invalid by a majority of 4:3] 1

Dixon CJ, McTiernan, Fullagar and Kitto JJ: [at pp 267-296]

In a federal form of government a part is necessarily assigned to the judicature which places it in a
position unknown in a unitary system or under a flexible constitution where Parliament is supreme.
A federal constitution must be rigid. The government it establishes must be one of defined powers;
within those powers it must be paramount, but it must be incompetent to go beyond them. The
conception of independent governments existing in the one area and exercising powers in different
fields of action carefully defined by law could not be carried into practical effect unless the ultimate
responsibility of deciding upon the limits of the respective powers of the governments were placed
in the federal judicature. The demarcation of the powers of the judicature, the constitution of the
courts of which it consists and the maintenance of its distinct functions become therefore a
consideration of equal importance to the States and the Commonwealth. While the constitutional
sphere of the judicature of the States must be secured from encroachment, it cannot be left to the
judicial power of the States to determine either the ambit of federal power or the extent of the
residuary power of the States. The powers of the federal judicature must therefore be at once
paramount and limited. The organs to which federal judicial power may be entrusted must be
defined, the manner in which they may be constituted must be prescribed and the content of their
jurisdiction ascertained. These very general considerations explain the provisions of Chap III of the
Constitution, which is entitled The Judicature and consists of ten sections. It begins with s.
71 which says that the judicial power of the Commonwealth shall be vested in a Federal Supreme
Court to be called the High Court of Australia and in such other courts as the Parliament creates or
it invests with federal jurisdiction. There is not in s. 51, as there is in the enumeration of legislative
powers in Art. I, s. 8, of the American Constitution, an express power to constitute tribunals inferior
to the Federal Supreme Court. No doubt it was thought unnecessary by the framers of the
Australian Constitution who adopted so definitely the general pattern of Art. III but in their
variations and departures from its detailed provisions evidenced a discriminating appreciation of
American experience. On the other hand, the autochthonous expedient of conferring federal
jurisdiction on State courts required a specific legislative power and that is conferred by s. 77 (iii.).
What constitutes judicial power is not stated. But the subject matter of its exercise is defined with
some particularity

Had there been no Chap. III in the Constitution it may be supposed that some at least of the
legislative powers would have been construed as extending to the creation of courts with
jurisdictions appropriate to the subject matter of the power. This could hardly have been otherwise
with the powers in respect of bankruptcy and insolvency (s. 51 (xvii.)) and with respect to divorce
and matrimonial causes (s. 51 (xxii.)). The legislature would then have been under no limitations as
to the tribunals to be set up or the tenure of the judicial officers by whom they might be constituted.
But the existence in the Constitution of Chap. III and the nature of the provisions it contains make it
clear that no resort can be made to judicial power except under or in conformity with ss. 71-80. An

1
This summary of the case is from Peter A Gerangelos et al, Wintertons Australian Federal Constitutional Law:
Commentary and Materials (Lawbook Co, 3rd ed, 2013) 1265 ff.
exercise of a legislative power may be such that "matters" fit for the judicial process may arise
under the law that is made. In virtue of that character, that is to say because they are matters arising
under a law of the Commonwealth, they belong to federal judicial power. But they can be dealt with
in federal jurisdiction only as the result of a law made in the exercise of the power conferred on the
Parliament by s. 76 (ii.) or that provision considered with s. 71 and s. 77. Section 51 (xxxix.)
extends to furnishing courts with authorities incidental to the performance of the functions derived
under or from Chap. III and no doubt to dealing in other ways with matters incidental to the
execution of the powers given by the Constitution to the federal judicature. But, except for this,
when an exercise of legislative powers is directed to the judicial power of the Commonwealth it
must operate through or in conformity with Chap. III. For that reason it is beyond the competence
of the Parliament to invest with any part of the judicial power any body or person except a court
created pursuant to s. 71 and constituted in accordance with s. 72 or a court brought into existence
by a State. It is a proposition which has been repeatedly affirmed and acted upon by this
CourtIndeed to study Chap. III is to see at once that it is an exhaustive statement of the manner in
which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in
the affirmative but its very nature puts out of question the possibility that the legislature may be at
liberty to turn away from Chap. III to any other source of power when it makes a law giving judicial
power exercisable within the Federal Commonwealth of Australia. No part of the judicial power can
be conferred in virtue of any other authority or otherwise than in accordance with the provisions of
Chap. III

There is, of course, a wide difference and probably it is more than one of degree between a
denial on the one hand of the possibility of attaching judicial powers accompanied by the necessary
curial and judicial character to a body whose principal purpose is non-judicial in order that it may
better accomplish or effect that non-judicial purpose and, on the other hand, a denial of the
possibility of adding to the judicial powers of a court set up as part of the national judicature some
non-judicial powers that are not ancillary but are directed to a non-judicial purpose. But if the latter
cannot be done clearly the former must be then completely out of the question.

A number of considerations exist which point very definitely to the conclusion that the Constitution
does not allow the use of courts established by or under Ch III for the discharge of functions which
are not in themselves part of the judicial power and are not auxiliary or incidental thereto. First
among them stands the very text of the Constitution. If attention is confined to Ch III it would be
difficult to believe that the careful provisions for the creation of a federal judicature as the
institution of government to exercise judicial power and the precise specification of the content or
subject matter of that power were compatible with the exercise by that institution of other powers.
The absurdity is manifest of supposing that the legislative powers conferred by s 51 or elsewhere
enabled the Parliament to confer original jurisdiction not covered by ss 75 and 76To one
instructed only by a reading of Ch III and an understanding of the reasons inspiring the careful
limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of
Australia by the federal judicature brought into existence for the purpose, it must seem entirely
incongruous if nevertheless there may be conferred or imposed upon the same judicature authorities
or responsibilities of a description wholly unconnected with judicial power. It would seem a matter
of course to treat the affirmative provisions stating the character and judicial powers of the federal
judicature as exhaustive. What reason could there be in treating it as an exhaustive statement, not of
the powers, but only of the judicial power that may be exercised by the judicature? It hardly seems a
reasonable hypothesis that in respect of the very kind of power that the judicature was designed to
exercise its functions were carefully limited but as to the exercise of functions foreign to the
character and purpose of the judicature it was meant to leave the matter at large.

With reference to the federal judicature, the true contrast in federal powers is not between judicial
power lying within Ch III and judicial power lying outside Ch III. That is tenuous and unreal. It is
between judicial power within Ch III and other powers. To turn to the provisions of the Constitution
dealing with those other powers surely must be to find confirmation for the view that no functions
but judicial may be reposed in the judicature. If you knew nothing of the history of the separation of
powers, if you made no comparison of the American instrument of government with ours, if you
were unaware of the interpretation it had received before our Constitution was framed according to
the same plan, you would still feel the strength of the logical inferences from Chs I, II and III and
the form and contents of ss 1, 61 and 71. It would be difficult to treat it as a mere draftsman's
arrangement. Section 1 positively vests the legislative power of the Commonwealth in the
Parliament of the Commonwealth. Then s. 61, in exactly the same form, vests the executive power
of the Commonwealth in the Crown. They are the counterparts of s. 71 which in the same way vests
the judicial power of the Commonwealth in this Court, the federal courts the Parliament may create
and the State courts it may invest with federal jurisdiction. This cannot all be treated as
meaningless and of no legal consequence.

Probably the most striking achievement of the framers of the Australian instrument of government
was the successful combination of the British system of parliamentary government containing an
executive responsible to the legislature with American federalism. This meant that the distinction
was perceived between the essential federal conception of a legal distribution of governmental
powers among the parts of the system and what was accidental to federalism, though essential to
British political conceptions of our time, namely the structure or composition of the legislative and
executive arms of government and their mutual relations. The fact that responsible government is
the central feature of the Australian constitutional system makes it correct enough to say that we
have not adopted the American theory of the separation of powers. For the American theory
involves the Presidential and Congressional system in which the executive is independent of
Congress and office in the former is inconsistent with membership of the latter. But that is a matter
of the relation between the two organs of government and the political operation of the institution. It
does not affect legal powers. It was open no doubt to the framers of the Commonwealth
Constitution to decide that a distribution of powers between the executive and legislature could
safely be dispensed with, once they rejected the system of the independence of the executive. But it
is only too evident from the text of the Constitution that that was not their decision. In any case the
separation of the judicial powers from other powers is affected by different considerations. The
position and Constitution of the judicature could not be considered accidental to the institution of
federalism: for upon the judicature rested the ultimate responsibility for the maintenance and
enforcement of the boundaries within which governmental power might be exercised and upon that
the whole system was constructed. This would be enough in itself, were there no other reasons, to
account for the fact that the Australian Constitution was framed so as closely to correspond with its
American model in the classical division of powers between the three organs of government, the
legislature, the executive and the judicature. But, whether it was necessary or not, it could hardly be
clearer on the face of the Constitution that it was done. The fundamental principle upon which
federalism proceeds is the allocation of the powers of government. In the United States no doubts
seem to have existed that the principle should be applied not only between the federal Government
and the States but also among the organs of the national Government itself.

The judicial power, like all other constitutional powers, extends to every authority or capacity
which is necessary or proper to render it effective. The judicial power of which s 71 speaks is not to
be defined or limited in any narrow or pedantic manner.W ith respect to the matters comprised
within ss. 76, 77, 78 and 79, it rests with the Parliament to make laws affecting its content or
exercise. Legislative powers too are involved in some of the provisions of ss. 71, 72, 73 and 74.
And it must not be forgotten that s. 51 (xxxix.) expressly empowers the Parliament to make laws
with respect to matters incidental to the execution of any power vested by the Constitution in the
federal judicature. What belongs to the judicial power or is incidental or ancillary to it cannot be
determined except by ascertaining if it has a sufficient relation to the principal or judicial function
or purpose to which it may be thought to be accessory. On more than one occasion of late attempts
have been made in judgments in this Court to make it clear that a function which, considered
independently, might seem of its own nature to belong to another division of power, yet, in the
place it takes in connection with the judicature, falls within the judicial power or what is incidental
to it There are not a few subjects which may be dealt with administratively or submitted to the
judicial power without offending against any constitutional precept arising from Chap. III. It may be
too that the manner in which they have been traditionally treated or in which the legislature deals
with them in the particular case will be decisive: see Davison's Case (1954) 90 CLR 353,

Independently, therefore, of certain considerations which it will be necessary to discuss, it is

difficult to see what escape there can be from the conclusion that the Arbitration Court, though
under s. 51 (xxxv.) of the Constitution there is legislative power to give it the description and many
of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally
combine with its dominant purpose and essential functions the exercise of any part of the strictly
judicial power of the Commonwealth. The basal reason why such a combination is constitutionally
inadmissible is that Chap. III does not allow powers which are foreign to the judicial power to be
attached to the courts created by or under that chapter for the exercise of the judicial power of the
Commonwealth.

[The Commonwealth appealed unsuccessfully to the Judicial Committee of the Privy Council.]