The
conciliation and arbitration machinery underwent a fundamental change in 1956
following the decision of the High Court in the Boilermakers case.
The
High Court held that it was unconstitutional for the Commonwealth Court
of Conciliation and Arbitration to be vested with both arbitral and judicial
powers because of the acceptance in the Constitution of the separation of
legislative and judicial powers. As a result, the Conciliation
and Arbitration Act 1904 was amended to establish two separate
bodies.
An order was made by the Court (Kirby, Dunphy and Ashburner JJ) of 31 May 1955[1], falling into a number of parts. The purpose in making them was to require obedience on the part of the Boilermakers Society to a provision in an award of the Arbitration Court prohibiting bans, limitations or restrictions on the performance of work in accordance with the award. In addition, there was a more general order enjoining breach or non-observance.
The second order dated 28 June 1955[2] found the Boilermakers Society guilty of contempt of the Arbitration Court by wilfully disobeying the order of 31 May 1955. The order imposed a fine of 500 pounds upon the Society, which was a registered organisation of employees, and ordered it to pay the costs of the proceedings.[3]
From 15 August 1955 to 2 March 1956 a Full Court comprising Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ heard an application by the Boilermakers Society for a writ of prohibition on the grounds that the exercise of the earlier orders was:
‘. . . contrary and repugnant
to the provisions of the Constitution of the Commonwealth and, in particular,
Chap. III thereof.’[4]
The application was upheld by a majority of the Court; Williams, Webb and Taylor JJ dissented.
The consolidated appeals brought by the Attorney-General of the Commonwealth of Australia, who intervened by leave of the original proceedings before the High Court, and by the Judges of the Commonwealth Court of Conciliation and Arbitration, who were some of the respondents to the proceedings were heard before members of the Privy Council from 14 January to 19 March 1957.
The problem, as stated was:
‘Is it permissible under the
Constitution of the Commonwealth of Australia for the Parliament to enact that
upon one body of persons, call it tribunal or Court, arbitral functions and
judicial functions shall be together conferred?’[5]
The appeals were dismissed.
[1] The Metal Trades Employers Association v The Boilermakers Society of Australia 81 CAR 112
[2] The Metal Trades Employers Association v The Boilermakers Society of Australia 81 CAR 231
[3] Ibid. at p. 232
[4] R v Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94 CLR 254 at 255
[5] Attorney-General (Cth) v R; Ex parte Boilermakers Society of Australia (1956-57) 95 CLR 529 at 534