R v Kirby; ex parte Boilermakers' Society of Australia

The case of *R v Kirby; ex parte Boilermakers' Society of Australia* involved an application for a writ of prohibition. The prosecutor, the Boilermakers' Society of Australia, sought to prevent the judges of the Commonwealth Court of Conciliation and Arbitration and the Metal Trades Employers' Association from proceeding with orders made by the Arbitration Court. These orders included the payment of costs and a fine of £500, which the prosecutor argued were made without constitutional authority.

The central legal issue before the High Court of Australia was whether the Commonwealth Court of Conciliation and Arbitration could constitutionally exercise both arbitral and judicial powers. Specifically, the Court had to determine if sections of the *Conciliation and Arbitration Act 1904-1952*, which empowered the Court to order compliance with awards and punish for contempt, were valid. The prosecutor contended that these powers were judicial in nature and that Chapter III of the Constitution prohibited the vesting of judicial power in a body established for non-judicial purposes, such as industrial arbitration.

A majority of the High Court (Dixon C.J., McTiernan, Fullagar, and Kitto JJ.) held that Chapter III of the Constitution does not permit the vesting of judicial power in a body established for purposes foreign to that power, nor does it allow for the combination of judicial power with non-ancillary functions. The Court reasoned that the Commonwealth Court of Conciliation and Arbitration, while established under the legislative power to deal with industrial conciliation and arbitration, was fundamentally an arbitral tribunal. Consequently, it could not constitutionally exercise any part of the Commonwealth's strictly judicial power. The Court found that the impugned provisions of the *Conciliation and Arbitration Act*, which conferred powers to order compliance and punish for contempt, were essentially judicial in character and therefore invalid.

The appeal was allowed, and the order nisi for prohibition was made absolute. The majority declared sections 29(1)(b) and (c) and 29A of the *Conciliation and Arbitration Act 1904-1952* to be invalid.