Imperfection and Inconvenience: Boilermakers' and the Separation of Judicial Power in Australia

Article excerpt

'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)


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 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 Boilermakers' doctrine. (8)


A The preceding decisions

Boilermakers' was decided against the background of the Wheat Case, (9) Alexander's Case, (10) and Dignan. …