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Boilermakers' and the Separation Of IMPERFECTION AND INCONVENIENCE: BOILERMAKERS’ AND THE SEPARATION OF JUDICIAL POWER IN AUSTRALIA ∗ GABRIELLE J APPLEBY ‘Persuade thyself that imperfection and inconvenience are the natural lot of mortals, and there will be no room for discontent, neither for despair.’ Ieyasu Tokagawa Shogun (1543-1616) I IMPERFECTION AND INCONVENIENCE: AN INTRODUCTION This article explores the imperfection and inconvenience of the 1956 decision of R v Kirby; Ex parte Boilermakers’ Society of Australia.1 It does so by drawing on several illustrations borne out in cases from the last 20 years and thereby fitting somewhat into the more contemporary theme of this special edition of the University of Queensland Law Journal. Boilermakers’ consolidated a number of previous High Court decisions forbidding non-judicial bodies to exercise federal judicial power,2 and some earlier judicial comments to the effect that federal courts could not exercise non-judicial power,3 to establish two negatively drawn principles, subject only to narrow exceptions. The twin principles are that a non-chapter III court cannot exercise the judicial power of the Commonwealth, and that a federal chapter III court cannot exercise anything other than the judicial power of the Commonwealth. Part I of this article provides an analysis of the imperfection of the reasoning employed by the majority in Boilermakers’ in drawing these principles. Part II of the article establishes the inconveniences of the decision by reference to four areas of jurisprudence and governance, each of which will be illustrated using a number of cases from the last two decades. In each area, the Boilermakers’ doctrine’s rigidity has reduced Parliament’s flexibility in responding to contemporary problems and expectations. The first area is the inhibition on the development of a system of efficient and accessible administrative decision-making tribunals. The second is the prohibition on cross-vesting of judicial power across the State and federal systems leading to difficult and technical choice of laws questions for litigants. The third is the ∗ Senior Lecturer, University of Adelaide Law School. I would like to thank Professor James Allan for the invitation to contribute to this themed edition of the University of Queensland Law Journal, and my colleagues Anna Olijnyk and Dr Matthew Stubbs for their comments on earlier versions of this article. Mistakes remain, of course, my own. 1 (1956) 94 CLR 254 (‘Boilermakers’’). 2 New South Wales v Commonwealth (1915) 20 CLR 54 (‘Wheat Case’); Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 (‘Alexander’s Case’). 3 Alexander’s Case (1918) 25 CLR 434, 464 (Isaacs and Rich JJ). Contra the majority (Latham CJ, Rich, McTiernan JJ) in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 (Dixon and Evatt JJ dissenting); Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 98 (Dixon J). Re Judiciary and Navigation Acts (1921) 29 CLR 257 was decided as a matter of jurisdiction and the definition of a ‘matter’ rather than on the basis that advisory opinions did not constitute judicial power of the Commonwealth. 266 University of Queensland Law Journal 2012 inability to modernise the military justice system through the introduction of greater independence and impartiality while maintaining a separate military system. The last is the impossibility of introducing a statutory bill of rights that maintains the supremacy of Parliament through the system of statements of incompatibility. Part II of the article demonstrates the High Court’s preoccupation with the doctrine as enunciated in Boilermakers’ rather than the objectives of the doctrine.4 Tony Blackshield warned of ‘the error of mechanically applying the words of a judgment as if they were the words of a statute’.5 Similarly, Callinan J said that ‘Reasons for judgment can only state principles, and not express rules as instruments and enactments do.’6 This ought to be remembered when considering the Boilermakers’ doctrine, ameliorating the rigidity of the judicially constructed test with the objectives and constitutional context in which it was stated. While I agree with Tokagawa that this mortal construct must be consigned to imperfection and inconvenience, I disagree that we should persuade ourselves to become content with this position, although many judges have forced themselves to be.7 We should strive for betterment: can the objectives underpinning Boilermakers’ be achieved in a less imperfect, less inconvenient way? My objective in this article is not simply to deconstruct the current jurisprudence relating to the separation of judicial power. In Part III therefore I consider an alternative limitation on the Parliament’s power that focuses on maintaining the independence, impartiality, and status of those bodies that exercise judicial power. This is a purposive, functionalist driven approach in lieu of the formalism of the 8 Boilermakers’ doctrine. II PART I –THE IMPERFECTIONS OF BOILERMAKERS’ A The preceding decisions Boilermakers’ was decided against the background of the Wheat Case,9 Alexander’s Case,10 and Dignan.11 These early decisions must be understood in their political context. The High Court in the Wheat Case considered the constitutionality of the Inter-State Commission Act 1912 (Cth). The framers had made provision for the 4 Geoffrey Sawer, Australian Federalism in the Courts (Melbourne University Press, 1967) 165. 5 Tony Blackshield, ‘Case Note: New South Wales v Commonwealth: Corporations and Connections’ (2007) 31 Melbourne University Law Review 1135, 1142, referring to the adoption of Gaudron J’s words in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346, 375, in New South Wales v Commonwealth (2006) 229 CLR 1 (‘WorkChoices Case’), 114-5. See also Caltex Oil (Aust) Pty Ltd v Feenan [1981] 1 NSWLR 169, 173 (Lord Diplock). 6 Coleman v Power (2004) 220 CLR 1, 111 (Callinan J). 7 On his retirement Sir Anthony Mason accepted that the separation of powers had ‘generated some less than inspiring jurisprudence’, for which he must accept some of the blame: Anthony Mason, ‘A New Perspective on the Separation of Powers’ (1996) 82 Canberra Bulletin of Public Administration 1, 1. 8 See formalist/functionalist divide explained in Peter Gerangelos, ‘Interpretative Methodology in Separation of Powers Jurisprudence: The Formalist/Functionalist Debate’ (2005) 8 Constitutional Law and Policy Review 1, 2-4; Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011) 199. 9 (1915) 20 CLR 54. 10 (1918) 25 CLR 434. 11 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 (‘Dignan’). Vol 31(2) Boilermakers’ and the Separation of Judicial Power 267 Inter-State Commission in s 101 of the Constitution to alleviate some of the difficulties caused by the creation of the new free-trade area and the language of s 92 of the Constitution. Under s 101, the Commission was to have ‘such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and all laws made thereunder.’ An appeal was available from the Inter-State Commission to the High Court ‘as to questions of law only’.12 Andrew Inglis Clark wrote in 1901 that the Inter-State Commission, so far as it was vested with powers of adjudication, ‘will be a court of judicature’.13 J M Finnis said: ‘The Inter- State Commission was undoubtedly intended by the founders to have, or be able to have, judicial powers’.14 But in the Wheat Case, a 4:2 majority (Griffith CJ, Isaacs, Powers and Rich JJ; Barton and Gavan Duffy JJ dissenting) found the conferral of judicial powers on the Inter-State Commission by the Inter-State Commission Act invalid,15 under what would become the first limb of the Boilermakers’ doctrine. As a justice of the High Court in the Wheat Case, Isaacs J achieved his intention expressed as a delegate to the drafting Convention in Melbourne, to ‘eliminate the constitutional creation of the Inter-State Commission.’16 While not eliminating the Commission, the judgment emasculated the body so that its utility was undermined; it was eventually disbanded in 1920.17 Isaacs J’s opposition to the Inter-State Commission was matched by his opposition to the appointment of High Court justices to the Court of Conciliation and Arbitration. The Court was established in 1904 with a President who had to be appointed from the justices of the High Court for a seven-year term, eligible for reappointment.18 In Alexander’s Case, a 4:3 majority of the High Court (Barton, Isaacs, Rich, Powers JJ; Griffith CJ, Higgins and Gavan Duffy JJ dissenting) struck down legislation conferring judicial functions on the Commonwealth Court of Conciliation and Arbitration on the basis that a body other than a court could not exercise judicial power. Isaacs and Rich JJ in Alexander’s Case also suggested what would become the second limb of the Boilermakers’ doctrine. They warned against the commingling of functions in judicial bodies, commenting that ‘A court of law has no power to give effect to any but rights recognized by law’.19 In Dignan, Dixon J, generally thought to be the architect of the majority decision in Boilermakers’, had also suggested a restriction that mirrored the second limb.20 In a course of reasoning that largely follows the first strand employed by the majority in Boilermakers’ and heavily influenced by, inter alia, Isaacs J’s judgment in the Wheat Case, Dixon J came to the conclusion that: 12 Constitution s 73(iii). 13 Andrew Inglis Clark, Studies in Australian Constitutional Law (Legal Books, 1901, 1997 reprint) 186. See also John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901 ed, Legal Books, Sydney, 1976 reprint) 743; and comments of Barton J in the Wheat Case (1915) 20 CLR 54, 74.
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