Case explains how the structure of the Constitution effects a strict separation of judicial and non-judicial

power:

When the fundamental principle of the separation of powers as marked out in the Australian

Constitution is observed and borne in mind, it relieves the question of much of its obscurity...

By the first Chapter, the legislative power of the Commonwealth is vested in a Parliament ... By

Chapter II ... the executive power of the Commonwealth is vested in the Sovereign ... Chapter

III vests the judicial power of the Commonwealth ... in specific organs, namely, Courts strictly

so called ... that exhausts the judicature ... And the distinct command of the Constitution is that

whatever judicial power ... is to be exerted in the name of the Commonwealth, must be

exercised by these strictly so called judicial tribunals.

Second, non-judicial power cannot be vested in s.71 courts. This is the principle from the famous

Boilermakers' Case (1956) 94 CLR 254 where the High Court (affirmed by the Privy Council) held that the

vesting of both non-judicial power (making of industrial awards) and judicial power (enforcement of awards

by injunctions etc) in the Commonwealth Court of Conciliation and Arbitration was invalid for it breached the

doctrine of separation of powers. The Parliament quickly remedied the situation by establishing the

Commonwealth Conciliation and Arbitration Commission to exercise the non-judicial power of making

awards, leaving to a federal court the judicial power of enforcement of those awards.

In the High Court, the joint majority (4-3) led by Dixon CJ relied on the special role of the federal judicature

as the guardian of the Constitution and of the federal system, being charged with "the ultimate responsibility

of deciding upon the limits of the respective powers of the Governments in the system ... From which it

followed... that the Federal judicature must be ... at once paramount and limited" (p276). Hence, the

majority derived from Chapter III this negative principle that non-judicial power cannot be vested in a s.71

court.

The minority justices appreciated that it is not always clear whether a power is judicial or non-judicial, so

provided it was not incompatible to vest the power which was capable of being either judicial or non-judicial

in a s.71 court, no breach of the doctrine would occur.

The Privy Council on appeal affirmed the majority's decision and is often quoted for saying:

Information Paper on Parliament and Government in Queensland

Parliamentary Education & Training Services, Queensland Parliament

In a federal system the absolute independence of the judiciary is the bulwark of the Constitution

against encroachment whether by the legislature or by the executive. To vest in the same body

executive and judicial power is to remove a vital constitutional safeguard. (540)

Criticism & Erosion of the Boilermakers' Principle

The effect of both of the principles outlined above is that the Commonwealth must be careful in which body

it vests those powers which can be both judicial and non-judicial.

This has led, to quote Barwick CJ in R v Joske; ex parte Australian Building Construction Employees & BLF

(1974) 130 CLR 87 to 90, to "excessive subtlety and technicality".

For example, in R v Joske, a challenge was brought to the power of the Commonwealth Industrial Court to

direct the Registrar to cancel the registration of a registered organisation upon various prescribed grounds.

The High Court upheld the validity of this power vested in a s.71 court because "the exercise of the power

depends on finding the existence of present facts or circumstances and the exercise of a discretion suitably

limited as a judicial discretion" (per Barwick CJ at 95).

While legal challenges may be mounted, the likelihood of success is slight in view of the flexibility with

which the High Court has viewed the nature of powers within this grey zone. The same power can be vested

in both a s.71 court and a non-judicial body or person, and provided "the trappings" of the power in each

case are appropriate to that repository of power, no infringement of the doctrine of separation of powers is

Likely to arise.

Erosion of the Boilermakers' principle has occurred in at least two respects:

I. A federal judge may be appointed in a personal capacity to a non-judicial office.

In Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577, the appointment of a federal

court judge as Deputy President of the Administrative Appeals Tribunal was upheld because it was a

personal appointment, and not the conferring of a non-judicial function on the Federal Court.

II Non-judicial power can be conferred on a federal judge in his or her personal capacity. This differs

from (i) in that the federal judge is not a member of a non-judicial body but simply is vested with

non-judicial power as a federal judge. In Hilton v Wells (1985) 157 CLR 57, a federal judge was

empowered to issue a warrant for tapping telephones for the purposes of narcotic investigations. It

was agreed that the issue of a warrant is an administrative function. A majority of the High Court

(per Gibbs CJ, Wilson & Dawson JJ) upheld the vesting of such a power in a federal judge in his or

her personal capacity.

1 2 3 4 5 6

All saints west community website

Creating an environment where all are involved and none is excluded Where information and ideas can flow freely.