R v Kirby; ex parte Boilermakers' Society of Australia

[1956] HCA 10

94 CLR 254

the initial annuity payments and ultimately in her refusals to con- tinue the payments in view of the unexpected depletion of the estate, she was taking advantage of the position created by the absence from the will of anything to qualify the apparently absolute bequest to her, and was going back upon an undertaking which was part of the inducement to the testator to leave his estate in her hands.

For these reasons the judgment of Barry J. should be affirmed and the appeal dismissed with costs.

Vary the judgment appealed from by substituting

for the words " upon trust" where they occur in the first declaration the words "subject to a trust' Subject to such variation dismiss the appeal with costs. Solicitors for the appellant, Wm. J. Clarke &Co. Solicitors for the respondents, Cameron &Lowenstern, Hamilton by Lynch &MacDonald.

94 CLR 255

[ ]

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KIRBY AND OTHERS; Ex PARTE BOILERMAKERS' SOCIETY OF AUSTRALIA. Constitutional Law (Cth.)--Industrial arbitration-Court of Conciliation and Arbi-

tration-Arbitral power-Judicial power-Combination of powers in one body- Validity-The Constitution (63 &64 Vict. c. 12), 88. 51 (xxxv.), (xxxix.), 71, 72, 73, (ii.), 77-Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904 No. 34 of 1952), 88. 29 (1) (b), (c), 29A. Aug. 15-19,

Industrial Law (Cth.)-C of Conciliation and Arbitration-Vested with judicial

and arbitral powers-Combination of powers-Constitutional validity-The 1956,

Constitution (63 &64 Vict. c. 12), 88. 51 (xxxv.), (xxxix.), 71, 72, 73, 76 (ii.), 77- Conciliation and Arbitration Act 1904-1952 (No. 13 of 1904-No. 34 of 1952), 88. 29 (1) (b), (c), 29A.

Chapter III of the Constitution does not permit of the exercise of a juris- diction which of its very nature belongs to the judicial power of the Common- wealth by a body established for purposes foreign to such power, notwith- standing that such body is organized as a court and in a manner which might otherwise satisfy SS. 71 and 72 of the Constitution, nor does it allow a com- bination with judicial power of functions not ancillary or incidental to its exercise but foreign to it. Thus the Commonwealth Court of Conciliation and Arbitration, though under S. 51 (xxxv.) of the Constitution there is legis- lative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth.

Paragraphs (b) and (c) of S. 29 (1) of the Conciliation and Arbitration Act 1904-1952 which respectively empower the Court of Conciliation and Arbitra- tion to order compliance with an order or award broken or not observed and to enjoin any organization or person from committing or continuing any contravention of the Act, and S. 29A thereof which confers upon such court the same power to punish for contempt of its powers and authorities, judicial or otherwise, as is possessed by the High Court in respect of contempt of that

94 CLR 256

Court, provide for the exercise by such court of powers essentially judicial in character and are accordingly invalid.

So held by Dixon C.J., McTiernan, Fullagar and Kitto JJ. (Williams, Webb and Taylor JJ., dissenting).

Semble, by the majority, that S. 29 (1) (a), S. 59 SO far as it relates to the Court of Conciliation and Arbitration and S. 119 of such Act are for like reasons invalid.

The judicial power of the Commonwealth in relation to appeals to the High Court from courts of the Territories, discussed. PROHIBITION.

Upon an application made on behalf of the Boilermakers' Society of Australia McTiernan J. on 30th July 1955 granted an order nisi for a writ of prohibition directed to the Honourable Richard Clarence Kirby, the Honourable Edward Arthur Dunphy and the Honourable Richard Ashburner, judges of the Commonwealth Court of Conciliation and Arbitration, and the Metal Trades Employers' Association, calling upon the respondents to show cause why they should not be prohibited from further proceeding with or upon orders made by the Court of Conciliation and Arbitration on 31st May 1955 and 28th June 1955 respectively upon the applica- tions of the respondent the Metal Trades Employers' Association whereby the prosecutor was ordered to pay certain costs and a fine of £500. The grounds of the order nisi were that " the pro- visions of SS. 29 (1) (b) and (c) and 29A of the Conciliation and Arbitration Act 1904-1952 are ultra vires and invalid in that (a) the Court of Conciliation and Arbitration is invested by statute with numerous powers, functions and authorities of an adminis- trative, arbitral, executive and legislative character; (b) the powers which SS. 29 (1) (b), (c) and 29A respectively of such Act purport to vest in the said court and exercised by it in making the said orders are judicial, and (c) that the said SS. 29 (1) (b), (c) and 29A are accordingly contrary and repugnant to the provisions of the Constitution of the Commonwealth and, in particular, Chap. III thereof"

The order to show cause came on for hearing before the Full Court of the High Court.

Further facts and the relevant statutory provisions appear in the judgments of the Court hereunder.

R. M. Eggleston Q.C. (with him Dermot Corson), for the prosecutor. It is not constitutionally permissible for the legislature to vest in a body having non-judicial functions any part of the judicial power of the Commonwealth. A strictly judicial body may, as ancillary to its judicial functions and in aid thereof, be given some functions

94 CLR 257

A. of a legislative character, but where a body is primarily established

for non-judicial purposes, or has independent non-judicial functions, it cannot also be invested with part of the judicial power of the

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Commonwealth. Two kinds of power are conferred by the Con- ciliation and Arbitration Act 1904-1952 upon the Arbitration Court 1 power to act as an industrial arbiter specifying industrial con- ditions, a power of a non-judicial character, and 2 power to enforce compliance with orders and awards under penalty and to punish for contempt, a power of a judicial character. Such a combination of powers is unconstitutional and it follows that the judicial powers cannot be exercised by the court, the judicial function being ancillary to the primary function which is to settle disputes. The combination being unlawful, the judicial power must be discarded. The alternative to this view would seem to be that whereas either judicial or arbitral power but not both can be conferred on the court, and there is no means of determining which the legislature would have chosen if put to the choice, the whole of the provisions relating to the court must be held invalid leaving the legislature to make a fresh choice. One possibility not open is to conclude that the legislature had a primary intention to create a judicial authority to exercise part of the judicial power of the Common- wealth independently of its arbitral functions and the judicial part can remain and the arbitral functions destroyed. The arbitral powers of the court are not part of the judicial power: Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1); Ex parte McLean (2). The basis of this fundamental proposition is the division of powers under the Constitution as recognized in this country and the United States.

[DIXON C.J. What do you say on the lapse of time in relation to this point which has been available to be taken for the past twenty-nine years and which everyone has thought fit to avoid ?]

That should not restrain the Court from coming to a correct conclusion now. The difficulties giving rise to the present applica- tion have become acute in recent times. [He referred to Reg. V. Foster Ex parte Commonwealth Life (Amalgamated) Assurance Ltd. 3.] Cases in which the point has never been taken should not be permitted to prevent a review, having regard to the far- reaching consequences which would flow from a judicial affirmation of the principle that it is legitimate for Parliament to set up an administrative organization and then, provided the members thereof are invested with proper security of tenure, to confer judicial power

1(1918) 25 C.L.R. 434. 2(1930) 43 C.L.R. 472. 3(1952) 85 C.L.R. 138, at p. 155. 94 CLR 25894 CLR 25994 CLR 260

prescribed for judicial bodies. [He referred to R. v. Federal Court of Bankruptcy; Ex parte Lowenstein 1.]

[WILLIAMS J. referred to Lowenstein's Case 2.] The principle there enunciated is, if accepted, fatal to the exercise by the Arbitration Court of judicial power and concludes the present case in the prosecutor's favour. Once the arbitral power is found to provide the rule which the judicial power in the same body enforces then such combination of powers is directly in conflict with Lowenstein's Case (2). As to the consequences of holding such combination invalid the prosecutor adopts what was said in Reg. v. Wright Ex parte Waterside Workers' Federation of Aus- tralia 3 and the judicial powers of the court at least must be held to be invalidly conferred. This is a case in which a fundamental constitutional safeguard is at stake and the Court cannot on any ground of inconvenience or lapse of time avoid the task of deciding that question of constitutional principle, and once having decided that principle, of giving effect to it.

D. I. Menzies Q.C. (with him C. I. Menhennitt), for the respondent judges of the Court of Conciliation and Arbitration, and for the Attorney-General of the Commonwealth intervening by leave. This Court has rejected the notion that the distortion of the British doctrine of separation of powers which took place when it was adopted and carried forward into the United States Constitution has ever formed part of the Constitution of this country, and also the notion that the Executive cannot exercise legislative power derived from Parliament. There is embodied in our Constitution a very real doctrine of separation of powers, but it is the British not the American doctrine. Isaacs J. referred to the former doctrine in Huddart Parker &Co. Pty. Ltd. v. Moorehead 4 and in New South Wales v. The Commonwealth 5. Whilst the frame- work of the Australian Constitution follows that of the United States, it nevertheless takes over the British practice and theory in relation to the organs of government rather than the American mutually exclusive division. There is nothing in the American Constitution comparable with the position of the Crown under our Constitution, and the adoption of the principle of responsible government in Australia is the antithesis of the American system. Once our Constitution departs from the American by requiring a very close identification between the executive and the legis- lative, which requires a minister to be a member of Parliament

1(1938) 59 C.L.R. 556. 2(1938) 59 C.L.R., at p. 576. 3(1955) 93 C.L.R. 528. 4(1908) 8 C.L.R. 330, at p. 382. 5(1915) 20 C.L.R. 54, at pp. 88, 89. 94 CLR 261

if he is to remain a minister for longer than three months, then there is a precise and definite negation of the very basis for the

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American doctrine. [He referred to Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 1.] These fundamental differences appearing, there is no place in the interpretation of the Australian Constitution for the acceptance of the derived notions of separation of powers which do not arise from any words in the Constitution and which have been attributed to the words of the American Constitution only because of the background there existing and which had disappeared by the time our Constitution was established. The principles adopted by this Court in the Engineers' Case 2 in rejecting the doctrine of the implied immunity of instrumentalities, which was formerly entrenched in the United States and had been adopted here from the earliest days of the Constitution, by reason of the great differences between the two constitutions tell strongly against this Court now reversing existing trends and embodying the American doctrine as part of the con- stitutional theory and practice of the Commonwealth. It is apparent from S. 9 of the covering clauses of the Constitution that British theory and practice have been followed, and where there are limits on the powers conferred such limits are to be found in the express words of the Constitution and not merely by implication from the fact that there are distinct organs of government dealt with separately by the Constitution. Under the American Con- stitution the executive takes no part in the legislative process, whereas under our Constitution legislative power is vested in the Queen and the two Houses of Parliament. There is nothing in Chap. II by way of implication which prevents Parliament from giving non-executive power to the Executive. That is an essential element of Dignan's Case 3. That decision is not merely a rejec- tion of the doctrine of the separation of powers, but is the rejection of any view that there is in these various chapters not merely a grant of power but an implied prohibition against giving further powers if Parliament has legislative power to make such a grant. Nothing in Chap. III either necessitates or suggests that the American doctrine should be applied or that courts should not have other functions not derived from that chapter but from elsewhere within the Constitution. Section 71 does not suggest that the courts shall have only judicial powers, nor is there anything in S. 73 (iii.) which indicates that the framers of the Constitution had any hard and fast notions on divisions of power. The position

1(1920) 28 C.L.R. 129, at p. 147. 2(1920) 28 C.L.R. 129. 3(1931) 46 C.L.R. 73. 94 CLR 26294 CLR 26394 CLR 26494 CLR 265

OF A. the foregoing submissions a federal court cannot have any power

other than the judicial power of the Commonwealth then the con- sequences here might be that the attempt to confer non-judicial power will fail. In the event of the Court coming to the conclusion that the present attack on the legislation should succeed the Court is asked to consider whether in the circumstances it should not treat the matter as determined by earlier decisions and independ- ently of its view now of their correctness refuse to review them.

B. P. Macfarlan Q.C. (with him R. J. A. Franki), for the re- spondent the Metal Trades Employers' Association. The Concilia- tion and Arbitration Act 1904-1952 is wholly valid and the Court of Conciliation and Arbitration properly and lawfully constituted. Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association 1 is a distinct ruling by this Court that the Arbitration Court as then established was a federal court within S. 73 of the Constitution and this statement has been departed from only to the limited extent on the point of tenure referred to in Alexander's Case 2. [He referred to Alexander's Case 3.] That case is outside the instant case, for there the decision of the Court was that the award was valid though it might not be enforced, SO that from 1908 onwards there has been no suggestion that the Act was invalid for any reason here suggested, indeed the decisions up to 1918 are either distinct rulings or distinctly involve the opinion of the Court that the Act was valid. [He referred to Act No. 39 of 1920, S. 20 and to Waddell v. Australian Workers' Union 4 Rola Co. (Australia) Pty. Ltd. v. The Commonwealth 5.] It has already been held by this Court that the prosecutor's submissions are not sound, and if the Court were now to be of opinion that they are sound, then the weight of the earlier decisions is a valid reason for not disturbing the position. [He referred to Hughes &Vale Pty. Ltd. v. New South Wales [No. 1] 6.] Upon the doctrine of stare decisis the wide area of industry covered by the Metal Trades Award and the numbers of persons affected thereby must be considered should the prosecutor's arguments find favour with the Court. If the Court should take the view that the American doctrine of separation of powers con- trols the interpretation of our Constitution, the doctrine of stare decisis and the considerations just mentioned justify the Court after nearly fifty years in regarding the situation as paradoxical and not

1(1908) 6 C.L.R. 309, at pp. 323, 2(1918) 25 C.L.R. 434. 3(1918) 25 C.L.R., at p. 479. 4(1922) 30 C.L.R. 570, at p. 574. 5(1944) 69 C.L.R. 185, at pp. 215, 6(1953) 87 C.L.R. 49, at p. 76. 94 CLR 266

declaring the Act invalid. [He referred to Waters v. The Common- wealth 1.] The decisions in R. v. Bernasconi 2 and Porter V. The King Ex parte Yee 3 are a denial that only judicial power of the type referred to in Chap. III may be conferred upon this Court or any other federal court. [He referred to Federal Capital Commission v. Laristan Building &Investment Co. Pty. Ltd. 4; Edie Creek Pty. Ltd. v. Symes 5; Douran v. Whisker 6.] The Conciliation and Arbitration Act finds its justification in SS. 51 (xxxv.) and 71. Section 51 (xxxv.) is directed to the elements of concilia- tion, arbitration in relation to disputes, and the settlement of those disputes by prescribed means, and each of such elements must be understood and construed according to the understanding and con- cept not only of conciliation and arbitration but conciliation and arbitration as accepted at the date of the enactment of the Constitu- tion. [He referred to R. v. Commonwealth Court of Conciliation and Arbitration Ex parte Whybrow &Co. 7.] It is inherent in the original concept of this power in S. 51 (xxxv.) that there shall be both arbitral and judicial powers complementary to one another. This Court in construing par. (xxxv.) has taken into account the history and sources available to the framers of the Constitution in 1900 Stemp v. Australian Glass Manufacturers Co. Ltd. 8 In 1900 provision had been made both in New Zealand and Western Australia for the enforcement of the awards by the arbitral tribunals which made the awards. [He referred to the Industrial Conciliation and Arbitration Act 1894-1898 (N.Z.) Industrial Conciliation and Arbitration Act 1900 (W.A.), SS. 80, 83, 87-89.] If contrary to our submissions the American doctrine of separation of powers did in some way inspire or control the framing of our Constitution, the ultimate question always for the Court is the interpretation of the Constitution. If the general nature of the power under S. 51 (xxxv.) upon the historical approach to the understanding of the power does involve both the ideas of arbitral and judicial functions, then it is a legitimate construction of the Constitution to say that in the case of this power the two processes may be combined in the one tribunal if Parliament SO desires. The order nisi should be discharged as the Act in its present form is wholly valid.

R. M. Eggleston Q.C., in reply.

Cur. adv. vult.

1(1951) 82 C.L.R. 188, at pp. 190, 2(1915) 19 C.L.R. 629. 3(1926) 37 C.L.R. 432. 4(1929) 42 C.L.R. 582. 5(1929) 43 C.L.R. 53, at pp. 56, 57. 6(1946) 72 C.L.R. 595. 7(1910) 11 C.L.R. 1, at pp. 36, 44. 8(1917) 23 C.L.R. 226, at pp. 237- 94 CLR 267

The following written judgments were delivered :-

DIXON C.J., McTIERNAN, FULLAGAR AND KITTO JJ. This order

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nisi for a writ of prohibition calls in question certain orders of the Court of Conciliation and Arbitration. First there is an order of 31st May 1955 falling into a number of parts. It consists in fact of a series of orders. 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 1956.) award. To effect the purpose the Arbitration Court relied upon

the power which par. (b) of S. 29 (1) of the Conciliation and Arbitra- tion Act 1904-1952 purports to confer of ordering compliance with an order or award proved to the satisfaction of the court to have been broken or not observed and upon the power which par. (c) of the same sub-section purports to confer of enjoining by order any organization or person from committing or continuing a contra- vention of the Act or a breach or non-observance of an order or award. The first order in respect of which a writ of prohibition is sought takes various forms of disobedience of the provision of the award and deals with them in turn, first, in each case, making an order for compliance and, next, two orders enjoining different aspects of breach or non-observance of the provision. Finally, there is a more general order enjoining breach or non-observance. The second order which it is sought to restrain by a writ of prohibi- tion is dated 28th June 1955 and is expressed as finding the Boiler- makers' Society guilty of contempt of the Arbitration Court by wilfully disobeying the order of 31st May 1955. The order goes on to impose a fine of £500 upon the society, which is a registered organization of employees, and to order it to pay the costs of the proceedings. This order was made in reliance upon S. 29A of the Act, the first sub-section of which provides that the Arbitration Court has the same power to punish contempt of its power and authority, whether in relation to its judicial powers and functions or otherwise, as is possessed by the High Court in respect of contempt of the High Court. Sub-section (4) limits the penalty to £500 in the case of contempt committed by an organization which consists in failure to comply with an order made under par. (b) or par. (c) of S. 29 (1).

The attack upon the jurisdiction to make these orders is based upon the ground that they could be made only in the exercise of the judicial power of the Commonwealth and that the Constitution does not authorize the legislature to establish a tribunal which at once performs the function of industrial arbitration and exercises

94 CLR 268

part of the judicial power of the Commonwealth. There may be a question whether powers such as those which S. 29 (1) (b) and (c) purport to give are necessarily part of the judicial power of the Commonwealth and cannot be referred simply to the power to legislate with respect to industrial conciliation and arbitration. But there can be no such question with reference to S. 29A which plainly could not be enacted except in conformity with Chap. III of the Constitution. Indeed it must rest on S. 76 (ii.) and SS. 71 and 77. It is possible to state the form of the argument very briefly. The primary function for which the Court of Conciliation and Arbitration is established is the prevention and settlement of industrial disputes by conciliation and arbitration. It involves the discharge for that purpose of the responsibility of determining directly the fundamental questions enumerated in S. 25, of main- taining a supervisory and appellate control over other matters and of exercising certain powers to secure the due and orderly conduct of the affairs of registered industrial organizations which may be or commonly are disputants. So much, it is said, appears not only from the history of the court and from the character of the powers from time to time entrusted to it, but from a mere perusal of the Act as it now stands. From that can be seen clearly enough that the reason for seeking to attach to the Arbitration Court powers or jurisdictions forming part of the judicial power of the Common- wealth was because they were regarded as accessory to its principal function. Desirable or important as it may have been considered in point of policy to place such powers in the hands of the Arbitra- tion Court, they nevertheless were in truth but incidental to or consequential upon the primary or chief functions of that court. These propositions formed the basis of the argument against the validity of the orders. For it is denied that Chap. III of the Constitution authorizes or permits the legislature to confer any part of the judicial power of the Commonwealth upon a body fufilling such purposes and it is asserted that Chap. III does not authorize or permit a combination or confusion of strictly judicial power with entirely different functions.

In a federal form of government a part is necessarily assigned to the judicature which places it in a position unknown in a unitary system or under a flexible constitution where Parliament is supreme.

A federal constitution must be rigid. The government it establishes must be one of defined powers; within those powers it must be para- mount, but it must be incompetent to go beyond them. The conception of independent governments existing in the one area and exercising powers in different fields of action carefully defined

94 CLR 269

by law could not be carried into practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers

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of the governments were placed in the federal judicature. The demarcation of the powers of the judicature, the constitution of the courts of which it consists and the maintenance of its distinct functions become therefore a consideration of equal importance to the States and the Commonwealth. While the constitutional sphere of the judicature of the States must be secured from encroachment, it cannot be left to the judicial power of the States to determine either the ambit of federal power or the extent of the residuary power of the States. The powers of the federal judicature must therefore be at once paramount and limited. The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained. These very general considerations explain the provisions of Chap. III of the Constitution which is entitled The Judicature" and consists of ten sections. It begins with S. 71 which says that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia and in such other courts as the Parliament creates or it invests with federal jurisdiction. There is not in S. 51, as there is in the enumeration of legislative powers in Art. I, S. 8, of the American Constitution, an express power to constitute tribunals inferior to the Federal Supreme Court. No doubt it was thought unnecessary by the framers of the Australian Constitu- tion who adopted SO definitely the general pattern of Art. III but in their variations and departures from its detailed provisions evidenced a discriminating appreciation of American experience. On the other hand, the autochthonous expedient of conferring federal jurisdiction on State courts required a specific legislative power and that is conferred by S. 77 (iii.). What constitutes judicial power is not stated. But the subject matter of its exercise is defined with some particularity. Judicial power is divided between appellate and original jurisdiction. Section 73 delimits the appellate power by reference to the tribunals from whose judgments, decrees, orders and sentences an appeal is to lie. Sec- tions 75 and 76 confine the original jurisdiction which may be exercised in virtue of the judicial power to certain matters chosen in virtue of their relation to the Constitution or to federal law or to some supposed advantage in submitting them to the national judicial power. Section 77 (i.) gives a legislative power of defining with respect to the subjects of original jurisdiction the jurisdiction of the courts which Parliament creates. Section 77 (ii.) authorizes

94 CLR 270

the legislature to say with respect to those matters how much of the jurisdiction of a federal court shall be exclusive of that exercis- able by the courts of the States. Section 79 gives to the Parliament a power to prescribe the number of judges by whom the federal jurisdiction of a court may be exercised. Section 78 has reference to matters in which the Commonwealth is a party and matters between States or between a State and a resident of another State. They are of course matters which fall within the original jurisdic- tion that is conferred upon the High Court and may be conferred on other courts. Section 74 concerns appeals to the Privy Council. Section 80 is an attempt, very unsuccessful it has proved, to adopt or adapt portion of the American provision in Art. III, SS. 2 and 3. Section 72 secures the tenure and remuneration of the judges and prescribes the mode of appointment.

Among the legislative powers enumerated in S. 51, par. (xxxix.) alone mentions the judicature. It takes the powers vested by the Constitution respectively in the three branches of government, that is to say by S. 1, by S. 61 and by S. 71, and gives a power to make laws with respect to matters incidental to the execution of these various powers, and adds, apparently for the purposes of such provisions as SS. 64 and 69, a reference to the powers vested in any department or officer of the Commonwealth.

Had there been no Chap. III in the Constitution it may be supposed that some at least of the legislative powers would have been construed as extending to the creation of courts with juris- dictions appropriate to the subject matter of the power. This could hardly have been otherwise with the powers in respect of bankruptcy and insolvency (s. (xvii.) ) and with respect to divorce and matri- monial causes (s. 51 (xxii.) ). The legislature would then have been under no limitations as to the tribunals to be set up or the tenure of the judicial officers by whom they might be constituted. But the existence in the Constitution of Chap. III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with SS. 71-80. An exercise of a legislative power may be such that "matters" fit for the judicial process may arise under the law that is made. In virtue of that character, that is to say because they are matters arising under a law of the Commonwealth, they belong to federal judicial power. But they can be dealt with in federal jurisdiction only as the result of a law made in the exercise of the power con- ferred on the Parliament by S. 76 (ii.) or that provision considered with S. 71 and S. 77. Section 51 (xxxix.) extends to furnishing

94 CLR 271

courts with authorities incidental to the performance of the func- tions derived under or from Chap. III and no doubt to dealing in

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other ways with matters incidental to the execution of the powers given by the Constitution to the federal judicature. But, except for this, when an exercise of legislative powers is directed to the judicial power of the Commonwealth it must operate through or in conformity with Chap. III. For that reason it is beyond the com- petence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to S. 71 and constituted in accordance with S. 72 or a court brought into existence by a State. It is a proposition which has been repeatedly affirmed and acted upon by this Court see New South Wales V. The Commonwealth 1; Waterside Workers' Federation of Australia V. J. W. Alexander Ltd. 2 British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation 3 Silk Bros. Pty. Ltd. v. State Electricity Commission (Vict.) 4 Reg. v. Davison 5. Indeed to study Chap. III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Chap. III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia. No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap. III. The fact that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise was noted very early in the development of the principles of interpretation: 6. In Chap. III we have a notable but very evident example.

The first contention made in support of the writ of prohibition is that Chap. III contemplates the creation of courts which will exist for the exercise of some part of the judicial power and it does not authorize the bestowal of judicial power upon some body the purpose of whose being is not the exercise of federal jurisdiction in the sense of the Constitution notwithstanding that the body is given the character of a court and that the persons who compose it are appointed and secured in their offices in the manner prescribed by S. 72. It would not, for example, be within the legislative power of the Commonwealth to constitute the Comptroller or a Collector

1(1915) 20 C.L.R. 54, at pp. 62, 2(1918) 25 C.L.R. 434. 3(1925) 35 C.L.R. 422. 4(1943) 67 C.L.R. 1. 5(1954) 90 C.L.R. 353. 61 Plow. 113 [75 E.R. 176]. 94 CLR 272

of Customs a court, providing him with the security of tenure and remuneration prescribed by S. 72, and to confer upon him judicial power to determine matters arising under the Act he administers. Nor could the like be done with the Commissioner of Taxation or the Director of Navigation. Had it been allowable under the Constitution to give the members of the Inter-State Commission a life appointment, nevertheless the commission could not on this view have been constituted a court and armed with judicial power for its dominant functions would still have been those described by S. 101, viz. the execution and maintenance of the provisions of the Constitution relating to trade and commerce and laws made thereunder. What Isaacs J. said in New South Wales v. The Commonwealth 1 with reference to this description of its functions would have remained true: 'Those words denote the purpose and nature of the power to be conferred, and mark their limit. Courts do not execute or maintain laws relating to trade and commerce. Those words imply a duty to actively watch the observance of those laws, to insist on obedience to their-mandates, and to take steps to vindi- cate them if need be. But a Court has no such active duty: its essential feature as an impartial tribunal would be gone, and the manifest aim and object of the constitutional separation of powers would be frustrated. A result SO violently opposed to the funda- mental structure and scheme of the Constitution requires, as I have before observed, extremely plain and unequivocal lang- uage 2. Therefore, if the argument be right, the decision in that case must have been the same, even without the fatal deficiency of tenure found in S. 103 (ii.).

There is, of course, a wide difference-and probably it is more than one of degree-between a denial on the one hand of the possi- bility of attaching judicial powers accompanied by the necessary curial and judicial character to a body whose principal purpose is non-judicial in order that it may better accomplish or effect that non-judicial purpose and, on the other hand, a denial of the possi- bility of adding to the judicial powers of a court set up as part of the national judicature some non-judicial powers that are not ancillary but are directed to a non-judicial purpose. But if the latter cannot be done clearly the former must be then completely out of the question.

A number of considerations exist which point very definitely to the conclusion that the Constitution does not allow the use of courts established by or under Chap. III for the discharge of functions which are not in themselves part of the judicial power and are not

1(1915) 20 C.L.R. 54. 2(1915) 20 C.L.R., at p. 93. 94 CLR 273

auxiliary or incidental thereto. First among them stands the very text of the Constitution. If attention is confined to Chap. III it would be difficult to believe that the careful provisions for the

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creation of a federal judicature as the institution of government to exercise judicial power and the precise specification of the con- tent or subject matter of that power were compatible with the exercise by that institution of other powers. The absurdity is manifest of supposing that the legislative powers conferred by S. 51 or elsewhere enabled the Parliament to confer original jurisdiction not covered by SS. 75 and 76. It is even less possible to believe that for the Federal Commonwealth of Australia an appellate power could be created or conferred that fell outside S. 73 aided possibly by S. 77 (ii.) and (iii.). As to the appellate power over State courts it has recently been said in this Court: On the face of the provisions they amount to an express statement of the Federal legislative and judicial powers affecting State courts which, with the addition of the ancillary power contained in S. 51 (xxxix.), one would take to be exhaustive" Collins v. Charles Marshall Pty. Ltd. 1. To one instructed only by a reading of Chap. III and an understanding of the reasons inspiring the careful limitations which exist upon the judicial authority exercisable in the Federal Commonwealth of Australia by the federal judicature brought into existence for the purpose, it must seem entirely incongruous if nevertheless there may be conferred or imposed upon the same judicature authorities or responsibilities of a description wholly unconnected with judicial power. It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive. What reason could there be in treating it as an exhaustive statement, not of the powers, but only of the judicial power that may be exercised by the judicature ? It hardly seems a reasonable hypothesis that in respect of the very kind of power that the judicature was designed to exercise its functions were carefully limited but as to the exercise of functions foreign to the character and purpose of the judicature it was meant to leave the matter at large. Unfortunately, as perhaps it has turned out to be, the joint judgment delivered in In re Judiciary and Navigation Acts 2, by the majority of the Court, distinguished between the two conclusions. The joint judgment which took this course was that of Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. The legislation the validity of which was in question, viz. Pt. XII of the Judiciary Act 1903-1920, purported to give this Court juris- diction to hear and determine any question of law as to the validity

1(1955) 92 C.L.R. 529, at p. 543. 2(1921) 29 C.L.R. 257. 94 CLR 274

of a federal law which the Governor-General might refer for hearing and determination and to make the determination final and con- clusive and subject to no appeal. The learned judges treated it as an attempt to confer judicial power but judicial power which fell outside Chap. III of the Constitution. Their Honours appear in effect to have regarded it as a provision seeking to impose upon this Court a duty to pronounce a judgment in rem on the abstract question of the constitutional validity of federal legislation. Their Honours do not use the expression in rem " but authoritative declaration". It is possible that no more is meant than authorita- tive precedent, which seems to have been the understanding of Higgins J. However that may be, if it was anything it was original jurisdiction and, as there was no "matter" within S. 76 made the subject of jurisdiction, it was outside the power to confer original jurisdiction. On the view that it was a kind of judicial power, it was enough to decide that the provision was an invalid attempt to enlarge the judicial power of the Commonwealth. The joint judg- ment contains these passages which sufficiently explain the position adopted in the joint judgment: "After carefully considering the provisions of Part XII, we have come to the conclusion that Parliament desired to obtain from this Court, not merely an opinion, but an authoritative declaration of the law. To make such a declaration is clearly a judicial function, and such a function is not competent to this Court unless its exercise is an exercise of part of the judicial power of the Commonwealth. If this be so, it is not within our province in this case to inquire whether Parliament can impose on this Court, or on its members, any, and if SO what, duties other than judicial duties, and we refrain from expressing any opinion on that question. What, then, are the limits of the judicial power of the Commonwealth ? The Constitution of the Common- wealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes legislative, executive and judicial (New South Wales v. The Common- wealth 1 ). In each case the Constitution first grants the power and then delimits the scope of its operation (Alexander's Case 2 ) This express statement (scil. in SS. 75 and 76) of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. The question then is narrowed to this: Is authority to be found

1(1915) 20 C.L.R. 54, at p. 88. 2(1918) 25 C.L.R. 434, at p. 441. 94 CLR 275

under sec. 76 of the Constitution for the enactment of Part XII of the Judiciary Act 1.

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The question thus propounded was answered by the learned judges in the negative.

Given a court which satisfies S. 71 and S. 72, the line is by no means broad or easily discerned between judicial power, not being of an appellate nature, which under S. 76 and S. 77 the Parliament may confer upon it and the judicial power which, had there been no implication from Chap. III restricting the meaning or operation of S. 51, a legislative power contained in that section might have enabled the Parliament to confer. Inasmuch as S. 76 (ii.) extends to all matters arising under any laws made by the Parliament, there could hardly be much difference SO long as it is all within the con- ception of judicial power. So far as a difference exists it would seem to depend upon the word "matter" and upon some failure on the part of the Parliament to confine the jurisdiction it attempts to confer to some 'matter" or "matters". But such a failure will usually mean either that the power it is sought to confer is not judicial or that it is SO wide that it goes outside the subjects of federal power. Perhaps it will be enough by way of illustration to mention the unsuccessful argument in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett Barrett V. Opitz 2, and the grounds for rejecting it 3. There is in truth much to be said for the view that the function which the legislation, held invalid in In re Judiciary and Navigation Acts 4, attempted to confer was either not judicial or not only outside Chap. III but outside all affirmative legislative powers. If the legislation meant no more than that the Court was to give an opinion which would be treated as an authoritative precedent, that does not seem to amount to judicial power. If it meant that the Court was to pronounce a judgment on a question of constitutional validity legally concluding everybody, SO that no one thereafter might resort to the Constitution as the test of competence but must be governed by the determination of the Court exclusively, then it may well be doubted whether S. 51 (xxxix.) or any other legislative power could support such a measure.

With reference to the federal judicature, the true contrast in federal powers is not between judicial power lying within Chap.

III and judicial power lying outside Chap. III. That is tenuous and unreal. It is between judicial power within Chap. III and

1(1921) 29 C.L.R. 257, at pp. 264, 2(1945) 70 C.L.R. 141, at p. 145. 3(1945) 70 C.L.R., at pp. 154, 165- 4(1921) 29 C.L.R. 257. 94 CLR 276

other powers. To turn to the provisions of the Constitution dealing with those other powers surely must be to find confirmation for the view that no functions but judicial may be reposed in the judicature. If you knew nothing of the history of the separation of powers, if you made no comparison of the American instrument of government with ours, if you were unaware of the interpretation it had received before our Constitution was framed according to the same plan, you would still feel the strength of the logical in- ferences from Chaps. I, II and III and the form and contents of SS. 1, 61 and 71. It would be difficult to treat it as a mere drafts- man's arrangement. Section 1 positively vests the legislative power of the Commonwealth in the Parliament of the Common- wealth. Then S. 61, in exactly the same form, vests the executive power of the Commonwealth in the Crown. They are the counter- parts of S. 71 which in the same way vests the judicial power of the Commonwealth in this Court, the federal courts the Parliament may create and the State courts it may invest with federal juris- diction. This cannot all be treated as meaningless and of no legal consequence.

Probably the most striking achievement of the framers of the Australian instrument of government was the successful combina- tion of the British system of parliamentary government containing an executive responsible to the legislature with American federalism. This meant that the distinction was perceived between the essential federal conception of a legal distribution of governmental powers among the parts of the system and what was accidental to federalism, though essential to British political conceptions of our time, namely the structure or composition of the legislative and executive arms of government and their mutual relations. The fact that responsible government is the central feature of the Australian constitutional system makes it correct enough to say that we have not adopted the American theory of the separation of powers. For the American theory involves the Presidential and Congressional system in which the executive is independent of Congress and office in the former is inconsistent with membership of the latter. But that is a matter of the relation between the two organs of government and the political operation of the institution. It does not affect legal powers. It was open no doubt to the framers of the Common- wealth Constitution to decide that a distribution of powers between the executive and legislature could safely be dispensed with, once they rejected the system of the independence of the executive. But it is only too evident from the text of the Constitution that that was not their decision. In any case the separation of the

94 CLR 277

A. judicial powers from other powers is affected by different con-

siderations. The position and constitution of the judicature could not be considered accidental to the institution of federalism: for

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upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed. This would be enough in itself, were there no other reasons, to account for the fact that the Australian Constitution was framed SO as closely to correspond with its American model in the classical division of powers between the three organs of government, the legislature, the executive and the judicature. But, whether it was necessary or not, it could hardly be clearer on the face of the Constitution that it was done. The fundamental principle upon which federalism proceeds is the allocation of the powers of government. In the United States no doubts seem to have existed that the principle should be applied not only between the federal Government and the States but also among the organs of the national Government itself.

It is not necessary to trace the course of constitutional develop- ment in the United States with respect to the separation of powers. It is enough to say that an unfortunate rigidity in the conception of the boundaries between the three great functions of government led for a time to difficulties both of practice and of theory and that the practical expedients by which the difficulties have been met have left the constitutional theorists somewhat at a loss in recon- ciling them with a priori principle. It is, however, a broad division of power and the division, although it was taken immediately from an American original, is a division of powers whose character is determined according to traditional British conceptions see Victorian Stevedoring &General Contracting Co. Pty. Ltd. and Meakes V. Dignan 1. So understood difficulties as between executive and legislative power are not to be expected and none has arisen. It is in connection with judicial power that questions are apt to occur. But it is hardly consistent with the form and contents of Chaps. I,

II and III to assign no legal consequence to the division. That was the contemporary view of at least two writers entitled to speak with authority. Mr. Justice Inglis Clark in his Studies in Australian Constitutional Law, 2nd ed. (1905), at p. 28, deals with the matter. His understanding appears from the following passages: "The Constitution of the Commonwealth expressly and distinctly dis- tributes between the Parliament of the Commonwealth, the Crown, and the Federal Judiciary together with such courts of the States as

1(1931) 46 C.L.R. 73, particularly at pp. 101, 102. 94 CLR 278

shall be invested with federal jurisdiction, the legislative, the execu- tive and the judicial powers exercisable under its authority. A similar distribution of legislative, executive and judicial powers is made by the Constitution of the United States of America. But within the limits of the British Empire it is only in the Constitution of the Commonwealth of Australia that such a distribution of govern- mental function is made by a written organic law." Having dealt with the separation of functions secured in practice in Great Britain he wrote: 'Therefore the distribution of governmental functions which is made by the Constitution of the Commonwealth of Australia is not an innovation upon British constitutional practice; but the provisions of the Constitution of the Commonwealth which distri- butively and categorically vest the legislative, the executive, and the judicial powers in three separate organs of government, impose upon the legislative authority of the Parliament of the Common- wealth a legal limitation which does not exist in regard to the Parliament of any other portion of the British Empire." (p. 31). Sir William Harrison Moore, in his The Constitution of the Common- wealth of Australia, 2nd ed. (1910), begins his discussion (p. 93) by observing "The Constitution follows the plan of the United States Constitution in committing the functions of government-legislative, executive, and judicial-to three separate departments." Having stated the provisions of SS. 1, 51, 61 and 71, he writes (p. 94): "The allotment of functions by the Constitution is thus not merely an allotment between State and Commonwealth; it is also an allot- ment amongst the organs of the Commonwealth Government." He concludes (p. 96): 'In the case of the Commonwealth Parliament it is impossible to avoid the conclusion that the separation of powers was intended to establish legal limitations on the powers of the organs of government, and that the Courts are required to address themselves to the problem of defining the functions of those organs." Strong judicial confirmation for these views is to be found in New South Wales v. The Commonwealth 1. The question was whether the Inter-State Commission established under S. 101 of the Constitu- tion and consisting of members holding office on the tenure pre- scribed by S. 103 might be created a court and given judicial powers. Isaacs J. said: "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 obscur- ity " 2. His Honour then refers to it as " the dominant principle of demarcation" 3. When this dominant principle is applied to

1(1915) 20 C.L.R. 54. 2(1915) 20 C.L.R., at p. 88 3(1915) 20 C.L.R., at p. 90. 94 CLR 27994 CLR 280

2nd ed. (1929), pp. 1619, 1620, § 1062: 'Thus, it is not a correct statement of the principle of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather, the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitu- tion, been delegated to it, but that it may not exercise powers not

SO constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions unless such powers are properly incidental to the performance by it of its own appropriate functions. From the rule, as thus stated, it appears that in very many cases the propriety of the exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative or judicial, but whether it has been specifically vested by the Constitution in that depart- ment, or whether it is properly incidental to the performance of the appropriate functions of the department into whose hands its exercise has been given. Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested." This principle and the con- ceptions of English law and tradition and British constitutional practice may explain what to some has appeared a contradiction of the view that the distribution of powers possessed a legal significance. That is to say it may explain the fact that it is the settled constitu- tional doctrine of the Commonwealth that the legislature, by a law otherwise within its competence, may empower the executive Government to make statutory rules and orders possessing the binding force of law. The war is too recent to make it necessary to refer to the immense use of the power conferred by the National Security Act 1939-1940. The foundation of the doctrine as well as the course of authority by which it was established were examined in Victorian Stevedoring &General Contracting Co. Pty. Ltd. and Meakes v. Dignan 1. Gavan Duffy C.J. and Starke J. said "It does not follow that, because the Constitution does not permit the judicial power of the Commonwealth to be vested in any tribunal other than the High Court and other Federal Courts, therefore the granting or conferring of regulative powers upon bodies other than Parliament itself is prohibited. Legislative power is very different in character from judicial power the general authority of the Parliament of the Commonwealth to

1(1931) 46 C.L.R. 73, at pp. 84, 86, 87, 89-102, 116, 117. 94 CLR 281

make laws upon specific subjects at discretion bears no resemblance to the judicial power" 1. An explanation that was ventured in

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that case was found in the nature of the power which the division prevents the legislature handing over. 'It may be acknowledged that the manner in which the Constitution accomplished the separa- tion of powers does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Common- wealth. The existence in Parliament of power to authorize sub- ordinate legislation may be ascribed to a conception of that legis- lative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute (Willingale v. Norris 2 ) and the rule that upon the repeal of the statute, the regulation fails (Watson V. Winch 3 ). Major consequences are suggested by the emphasis laid in Powell's Case 4 and in Hodge's Case 5 upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity " 6. Rich J. concurred in the judgment 7. Evatt J., however, expressed a view that is opposed to the conclusion reached in this judgment and he specifically referred to the Arbitration Court 8.

Perhaps the most serious difficulty in the case arises from dicta of a like tendency which have fallen from other judges in the Court or on other occasions and from the great length of time which has elapsed since it first became possible for a litigant to raise the contention upon which the Boilermakers' Society now relies. But it is desirable to postpone that difficulty for separate consideration.

1(1931) 46 C.L.R., at p. 84. 2(1909) 1 K.B. 57, at p. 66. 3(1916) 1 K.B. 688. 4(1885) 10 App. Cas. 282, at p. 291. 5(1883) 9 App. Cas. 117, at p. 132. 6(1931) 46 C.L.R., at pp. 101, 102. 7(1931) 46 C.L.R., at pp. 86, 87. 8(1931) 46 C.L.R., at pp. 116, 117. 94 CLR 282

One point, however, should be mentioned here which is the subject of decision. When in Alexander's Case 1 it was decided by a majority of the Court that no part of the judicial power of the Commonwealth could be exercised by the Arbitration Court as then constituted, it was held that there was no objection to the exercise of the functions of industrial conciliation. The President forming the Arbitration Court was a judge of this Court and it is said that it was therefore impliedly decided that it was competent for the legislature to combine the duties of an industrial arbitrator with the duty of exercising the judicial power. The Act established a separate office of President of the Arbitration Court and to that office the judge had accepted an appointment. It is true that the qualification prescribed by the statute for the office of President was that he should be a judge of this Court. All that seems to have been involved is that the office of President was not incom- patible with the exercise of his duties as a judge, which duties it may be observed in some respects at least arose under the Con- stitution. It was not a matter that was investigated or considered. It was simply assumed. No doubt no actual inconsistency had been experienced. But whether the view impliedly adopted can or cannot be sustained, it is quite a different situation from that now presented. One thing that Alexander's Case (1) did decide once and for all is that the function of an industrial arbitrator is completely outside the realm of judicial power and is of a different order. Upon that subject Isaacs and Rich JJ. said of it: That is essentially different from the judicial power. Both of them rest for their ultimate validity and efficacy on the legislative power. Both presuppose a dispute, and a hearing or investigation, and a decision. But the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other" 2. After describing the nature of the powers and duty of the industrial arbitrator and of the source of the binding force his determination possesses, Isaacs and Rich JJ. proceeded The two functions therefore are quite distinct. The arbitral function is ancillary to the legislative function, and provides the factum upon which the law operates to create the right or duty. The judicial function is an entirely separate branch, and first

1(1918) 25 C.L.R. 434. 2(1918) 25 C.L.R., at p. 463. 94 CLR 283

ascertains whether the alleged right or duty exists in law, and, if it binds it, then proceeds if necessary to enforce the law. Not

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only are they different powers, but they spring from different sources in the Constitution. The arbitral power arises under sec. 51

KIRBY;

(xxxv.) the judicial power under sec. 71. The latter section con- tains, in the words such other Federal Courts as the Parliament creates, the implied grant of power to create Courts other than the High Court. There is no other grant of that power in the Con- stitution-except as to territories (sec. 122). The two powers being distinct and separate in nature and origin, it follows that, when an award is once made, the dispute is settled and the arbitral func- tion is at an end. Variation of the award is, of course, an act of the same nature. And when the award is made and the right established, the law presumes the parties will obey it. Enforce- ment by a Court is an entirely separate matter. It arises on breach or threatened breach. But that is the case with every right. A right of property or a contractual right may exist, and, if violated, the law provides for its enforcement. But breach is not presumed. It follows that enforcement is in its nature an entirely separate process from the creation of the right" " 1.

When the Court of Conciliation and Arbitration was first estab- lished by Act No. 13 of 1904, which was described in its long title as an Act relating to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, few powers were given to the Court which neces- sarily formed part of the judicial power of the Commonwealth. The chief objects of the Act were expressly stated under seven headings in S. 2. They concerned the prevention of strikes and lockouts, the establishment of an Arbitration Court "having jurisdiction for the prevention and settlement of industrial disputes", the providing for conciliation and in default for settlement by award, the organization of representative bodies of employers and employees and the making and enforcement of industrial agreements. The objects set out did not refer to the enforcement of awards or any other judicial process. Section 11 enacted that there should be a Commonwealth Court of Conciliation and Arbitration which should be a court of record and should consist of a President. The President was to be appointed from among the Justices of the High Court and hold office for seven years: S. 12. The jurisdiction and powers with which the court and the President were armed were, with the exceptions to be mentioned, altogether concerned with the functions of industrial arbitration and conciliation. With

1(1918) 25 C.L.R., at pp. 464, 465. 94 CLR 284

powers and authorities of this description the court was very fully equipped. The Act included a number of provisions creating specific offences. Thus strikes and lockouts and certain analogous acts were penalized: SS. 6-10. Obstructing the court (s. 42), insulting and disturbing the court and like action (s. 82), wilfully making default in compliance with an award (s. 49), refusal and failure to give evidence (s. 84), certain disclosures of evidence and evidentiary information (ss. 85 and 86), all these were made offences. But all offences were punishable in the ordinary way by summary proceedings before courts exercising federal jurisdiction: see Acts Interpretation Act 1904, SS. 3, 5 and 6. The provisions which did assume to confer authority on the Arbitration Court which either must or might form part of the judicial power of the Commonwealth include a power to impose penalties for breach or non-observance of orders or awards proved to the satisfaction of the Arbitration Court to have been committed: S. 38 (d). The same jurisdiction exactly is conferred on courts of summary jurisdiction (s. 44) and, of course, it is plainly judicial power.

As the Act was amended up to the time of Alexander's Case 1- in that condition it is reprinted in Commonwealth Acts, vol. 13, App. A, p. 205-there were three other provisions which may be regarded as involving judicial power, viz. pars. (da) and (e) of S. 38 and S. 48. Paragraph (da) corresponds with the present S. 29 (b) and par. (e) with the present S. 29 (c). Section 48 provided that the Arbitration Court might, on the application of a party to an award, make an order in the nature of a mandamus or injunction to compel compliance with an award or restrain its breach under pain of fine or imprisonment. A contravention of the award after written notice of such an order was then made an offence punishable by fine or imprisonment.

How far the policy or principle of these provisions can be carried into effect under S. 51 (xxxv.) without invoking Chap. III may be worthy of consideration, but the provisions as they stood, SO it was claimed in Alexander's Case (1) gave a judicial character to the power. One further power has apparently been assumed to be judicial. It is the power which the President derived from S. 17 to review, annul, rescind or vary any act or decision of the Indus- trial Registrar. In Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association 2 this Court without giving reasons overruled an objection to the competence of an appeal from a decision given by the President under S. 17. If, as seems to be the case, this implies an assumption that S. 17 involved judicial power and that

1(1918) 25 C.L.R. 434. 2(1908) 6 C.L.R. 309, at p. 324. 94 CLR 285

the President was a court within S. 73 (ii.) of the Constitution, these are propositions which would not now be likely to find any

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support. Alexander's Case 1 was decided upon a case stated which asked categorical but rather general questions. The result

KIRBY;

of the answers was in effect that the seven years' tenure of the President meant that the powers of his court to enforce awards were invalid but his powers to arbitrate and make awards were valid. At that time S. 15A of the Acts Interpretation Act 1901-1950 had not been enacted and there was no severability clause" But Isaacs, Rich and Powers JJ. considered that the primary and dominating object in establishing the court had been industrial conciliation and arbitration and that the main provisions of the Act were not dependent on the provisions giving powers of enforcement to the court, and that the latter formed no condition of the operation of the other provisions and were not compensatory or otherwise essential to them. Barton J. went further than these judges and held the Act totally invalid. These learned judges appear to have regarded the Arbitration Court as a body whose creation, form, constitution and status were referable to S. 51 (xxxv.). They did not ascribe to the legislature any purpose of exercising the legis- lative power contained in S. 71. The failure of the provisions for the president's tenure to comply with S. 72 on the footing that the tenure prescribed by that section was for life was used by their Honours as a ground for supposing that no intention to rely on S. 71 existed. It is to be noted, however, that Higgins and Gavan Duffy JJ. interpreted S. 72 as allowing an appointment for a period less than life but forbidding the termination of the appointment (except on the grounds the section mentions) before the period expires, and Griffith C.J. considered that the fact that the President held his office as a judge of this Court for life, was sufficient com- pliance with S. 72. No reason therefore existed for imputing to the legislature an understanding that under S. 72 the President must be appointed for life, if the court was to be established under S. 71, and without that the failure to provide such a tenure can throw no light on the actual intention of the draftsman to rely or not to rely on S. 71.

After Alexander's Case (1) the Act was amended for the evident purpose of removing to courts exercising the judicial power that jurisdiction to enforce the Act or awards which the invalid pro- visions had sought to confer on the Arbitration Court. By Act No. 39 of 1918 amendments were made which had the effect of transferring from the Arbitration Court to a District, County or

1(1918) 25 C.L.R. 434. 94 CLR 286

Local Court or Court of summary jurisdiction the power given by S. 44 to impose penalties for a breach or non-observance of an award and from the Arbitration Court to a District, County or Local Court the power given by S. 48 to make an order in the nature of a man- damus or injunction to compel compliance with an award or to restrain its breach under pain of fine or imprisonment. Act No. 31 of 1920 added the High Court or a justice thereof to the courts mentioned in S. 48 and extended the section to include contraven- tions of the Act as well as awards. The High Court acted more than once on the provision SO amended while it was in force, which no doubt implies that it involved judicial power: see Waddell V. Australian Workers' Union 1: Whittaker Bros. v. Australian Timber Workers' Union 2; Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australia 3. Strange as it may seem, neither pars. (d), (da) nor (e) of S. 38 were amended or repealed. Possibly it was thought that pars. (da) and (e) might stand and that the judgments made it clear enough that par. (d) was void.

After nearly eight years had elapsed, during which the Arbitration Court had exercised its industrial powers under the law resulting from Alexander's Case 4 and the amendments that immediately followed that case, the legislature passed provisions for the recon- stitution of the court. By Act No. 22 of 1926 the office of President was abolished. Section 11 was amended SO as to read that the court it established should consist not of a President but of a Chief Judge and such other judges as should be appointed. New provisions were substituted for SS. 12 and 14 giving the judges a tenure which complied with S. 72 and fixed a remuneration. In S. 44 and S. 48 the Arbitration Court was added to the other courts therein named. Throughout the Act where the President was mentioned Chief Judge " or, as the case might be, 'judge " was substituted. It was the same court a new court was not created but the composition of the old one was changed. To cure the invalidity of any provisions which, had the Act been in its amended form ab ovo, would have been valid, S. 3 of Act No. 22 of 1926 provided that the Act as amended should be construed as if from the commencement of No. 22 it were confirmed and re-enacted to the intent that any provision that would otherwise have been construed as in excess of legislative power should from the com- mencement of No. 22 be read with and deemed to be enacted in relation to that Act. This provision does not create a new and

1(1922) 30 C.L.R. 570. 2(1922) 31 C.L.R. 564. 3(1925) 35 C.L.R. 462. 4(1918) 25 C.L.R. 434. 94 CLR 287

different court, if that matters. and it is difficult to see in what respect the section can affect the question. Plainly the Arbitration

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Court remained a tribunal established and equipped primarily and predominantly for the work of industrial conciliation and arbitra- tion. Thus the attempt to restore the Arbitration Court to a place in the enforcement provisions contained in SS. 44, 48, and no doubt S. 38 (d), (da) and (e), assumed that it was constitutionally possible to treat the possession of judicial power as something necessary or proper for the effectuation of functions of an altogether different order and on the footing of its being incidental to the main function to annex part of the judicial power to other powers. If this could not be validly done under the Constitution, either because of the dominant purpose and character of the tribunal or because a court established under Chap. III cannot exercise dual functions, then the attempt must be held to fail. Its failure could result only in its being held for a second time that such provisions as seek to attach to the arbitral powers powers of judicial enforcement are invalid. It could not result in the invalidity of the entire Act or the arbitral provisions of the Act. That would run counter to the whole intention of the legislature. Whether in 1918 it was Barton J. who was right or it was Isaacs, Powers and Rich JJ., once S. 15A of the Acts Interpretation Act came into force there could be no doubt of the severance.

By Act No. 43 of 1930 the provisions penalizing strikes, lockouts and analogous acts were repealed and at the same time S. 48 was repealed. This Act provided for the appointment of three Con- ciliation Commissioners who were to have certain of the powers of the court including that of making awards, but subject to appeal to the court. When in 1947 by Act No. 10 of that year the system of Conciliation Commissioners was strengthened and their jurisdic- tion enlarged, the provisions dealing with those officers and with the court were repealed and re-enacted in a form giving effect to the changes. Those dealing with the constitution and composition of the court were not altered except for some paragraphing and the alteration of "court of record" to "superior court of record". But because of the course taken it was thought necessary to include a provision, S. 4 of No. 10 of 1947, that notwithstanding the repeal of the Part containing those sections the Commonwealth Court of Conciliation and Arbitration existing immediately prior to the commencement of the Act should not cease to exist but should continue as the court referred to in the principal Act as amended. It is therefore the same court from beginning to end, if that is a relevant consideration. Act No. 10 of 1947 directed that the

94 CLR 288

sections of the principal Act as amended by that Act should be renumbered and it is convenient to refer to the provisions by the numbers by which they are now known and to deal with the Act as it is amended up to and including Act No. 54 of 1955. By S. 25 the court is empowered for the purpose of settling industrial disputes to make awards on the basal matters which the provision enumerates. The Conciliation Commissioners make awards on all else: SS. 13, 14 and 38. But a commissioner may refer an industrial dispute or a matter in dispute to the court with the concurrence of the Chief Judge or a judge appointed by him to deal with the matter, and if the commissioner refuses to do SO the Chief Judge or the judge SO appointed may on appeal to him refer the dispute or matter to the court if he thinks that it is of such importance that in the public interest it should be dealt with by the Arbitration Court: see SS. 14A and 14B. These provisions are enough to show that while the powers and functions of the Conciliation Commis- sioners were increased the responsibility of the Arbitration Court was not lessened as the supreme authority in the settlement of industrial disputes. The arbitral and industrial functions of the court have indeed been extended in not a few directions but it would be tedious to go through the provisions of the Act of an arbitral or industrial character. It is better to mention the pro- visions which either are or may be thought to be capable of reference only to the judicial power of the Commonwealth. Conspicuous among these are S. 119, S. 29 1 (a) and S. 29A. These plainly confer jurisdictions which belong to judicial power. Section 29A is not directed to what, in the language used in Barton v. Taylor (1), may be called the protective and self-defensive powers of the Arbitration Court. It is punitive. Section 119 is an ill-framed attempt to vest summary jurisdiction over offences. Paragraph (a) of S. 29 (1) is but a version of S. 38 (d) of the Act of 1904-1946 empowering the court to impose penalties for breach or non- observance of an order or award. Section 29A gives power to punish for contempts of all descriptions. These provisions plainly must rest upon Chap. III. Section 59, which was formerly S. 44, includes the Arbitration Court among other courts which it mentions and gives them severally jurisdiction to impose penalties for breach or non-observance of an order or award. This provision is in the same category. It is to be noticed that the invalidity of such provisions affects the operation, according to its own terms, of S. 86. The provisions of Div. 3 of Pt. v. relating to disputed

1(1886) 11 App. Cas., at p. 203. 94 CLR 289

elections in organizations seem for the most part to depend on S. 51 (xxxv.), including what is incidental to that paragraph and not

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to be touched by Chap. III. This may be true of much of S. 96G but sub-s. 3 (a) and (b) of that section and S. 96H, with which S. 96J is linked, may be thought to be cast in the mould of judicial power even although the same purpose may be achieved by pro- visions differently conceived. But that is not a matter now before us. A question not without difficulty is raised by S. 16 2 and (3) which provide for the determination, on a reference from a commis- sioner, of any question of law. Possibly it may be treated as advisory and not judicial see Knight v. Tabernacle Permanent Building Society 1. Possibly some doubt may exist whether sub-s. (6) of S. 16 is necessarily invalid as involving judicial power. Sections 13 and 25, considered independently, have been held to involve a mutually exclusive division of power between commis- sioners and court according to an objective standard that is im- perative: see R. v. Commonwealth Court of Conciliation and Arbitra- tion; Ex parte Ozone Theatres (Aust.) Ltd. (2); R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineers' Union (3). But it may be possible to base the division on the opinion of the controlling arbitral tribunal rather than upon an objective standard. Whether sub-s. (6) could be construed as doing no more than this is another matter: see R. v. Galvin Ex parte Metal Trades Employers' Association 4. But again the validity of sub-s. (6) is a question that is not before us. It is needless to say too that we cannot now pass upon the characterization of sub-s. (5) of S. 83A relating to the determination of disputes as to a title to membership of an organization. But it would be unreal to treat all or any of these powers as anything more than consequential, accessory or incidental authorities annexed to the powers and functions in the performance of which the Arbitration Court finds the real or domi- nant purpose of its being.

The foregoing lengthy examination of the considerations govern- ing the meaning and effect of Chap. III and of the history and nature of the legislation determining the nature, purpose and func- tion of the Arbitration Court discloses no ground for regarding it, consistently with the provisions of the Constitution, as possible to combine in one body the arbitral powers and functions which S. 51 (xxxv.) empowers the Parliament to create and any part of the judicial power of the Commonwealth; and it discloses no ground

3(1951) 82 C.L.R. 208, at p. 248. 2(1949) 78 C.L.R. 389, at pp. 400, 1(1892) 2 Q.B. 613. 4(1949) 77 C.L.R. 432, at pp. 444, 94 CLR 290

for treating the Arbitration Court as a court the purpose of whose creation or existence is the exercise of judicial power of the Common- wealth. The institution was created and exists as and for an authority entrusted with the full power and functions which S. 51 (xxxv.) authorizes. It is beside the mark to ask whether the legislature would in the beginning have given it the character of the court or persevered in maintaining that character had it not desired to give the institution some judicial power. We do not know and it does not matter; for it is a question of the power of the legislature to effect the object. There is no reason why S. 51 (xxxv.) should not suffice to enable the legislature to clothe the arbitral authority with the designation and character of a court and provide a status and tenure for the arbitrators of the same description as that required by S. 72 for judges. What it could not do if the Constitution is to be applied according to the meaning which its text conveys is to exercise the power conferred by S. 71 for the creation of a court for the fulfilment of the functions and objects forming the subject of the legislative power conferred by S. 51 (xxxv.). To create such a tribunal it must rely upon S. 51 (xxxv.) because those functions are outside Chap. III. Nor would it matter if the intention of the legislature was to rely upon S. 71 and S. 77. You do not determine questions of ultra vires except by reference to the sufficiency of the powers that actually exist to support what has actually been done.

Independently, therefore, of certain considerations which it will be necessary to discuss, it is difficult to see what escape there can be from the conclusion that the Arbitration Court, though under S. 51 (xxxv.) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Common- wealth. The basal reason why such a combination is constitu- tionally inadmissible is that Chap. III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth.

In argument however it was said by the prosecutor, on the authority of R. v. Federal Court of Bankruptcy Ex parte Lowen- stein 3 that it is constitutionally permissible to invest a court with limited legislative powers where the existence and exercise of such a power may be considered as reasonably incidental to the perform- ance of their judicial functions. There is, of course, no express provision in Chap. III to justify legislation investing courts with subordinate legislative authority and to suggest, as was done during the course of argument, that such legislation may be justified under

1(1949) A.C. 134. 2(1949) A.C., at p. 148. 3(1938) 59 C.L.R. 556. 94 CLR 339

S. 51 (xxxix.) is immediately to depart, to this extent at least, from the notion that the legislative authority to confer powers upon courts

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is to be sought exclusively in Chap. III. And if the prosecutor's main contention is correct there is nothing in S. 51 (xxxix.) to authorize any exception from it. That paragraph, SO far as is relevant to this inquiry, merely authorizes legislation with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in the Federal judicature and effective laws may well be made under this head of power without investing the courts with subordinate legislative authority. Indeed it was not thought necessary to invest the Federal Court of Bank- ruptcy with power to make rules for regulating its practice and procedure in the many types of matters which may come before it it was sufficient to leave the making of such rules to the executive. Moreover, it should be observed, the express power given by par. (xxxix.) would seem to be quite inconsistent with the notion, sug- gested in argument at one stage, that Chap. III impliedly authorizes legislation investing courts with non-judicial powers, including subordinate legislative power, which are incidental to the exercise of the judicial powers with which they have been invested. These observations may, of course, be said to constitute but a minor criticism of the prosecutor's contentions, but if S. 51 (xxxix.) may be relied upon to enable the legislature to confer upon courts authorities incidental to the performance of their strictly judicial functions it constitutes a real and not merely an apparent exception to the proposition that Chap. III is the exclusive measure of legis- lative authority to invest courts with powers and functions.

It cannot, of course, be doubted that no part of the judicial power of the Commonwealth can be vested in a body which is not a court constituted in accordance with Chap. III. Nor, except to the extent indicated, is it permissible to vest in any such court functions which "so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another But what is the position with respect to those other powers which are sub- ject to no a priori exclusive delimitation" ? In relation to problem the question also arises whether the "arbitral" powers of the Arbitration Court fall into this category of powers or whether they may, a priori, be assigned exclusively to one branch of govern- ment or another.

In his work on the Constitution of the United States, Willoughby has sought to deduce some general principles from the cases decided in that country in relation to these matters. He points out (2nd ed.

94 CLR 340

1619, 1620) that " it is not a correct statement of the prin- pp. ciple of the separation of powers to say that it prohibits absolutely the performance by one department of acts which, by their essential nature, belong to another. Rather the correct statement is that a department may constitutionally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not SO constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions." Thereupon he proceeds "From the rule, as thus stated, it appears that in very many cases the propriety of the exercise of a power by a given department does not depend upon whether, in its essential nature, the power is executive, legislative, or judicial, but whether it has been specifically vested by the Constitution in that depart- ment, or whether it is properly incidental to the performance of the appropriate functions of the department into whose hands its exercise has been given". But speaking of those powers the character of which does not admit of any a priori assignment he continues "Generally speaking, it may be said that when a power is not peculiarly and distinctly legislative, executive or judicial, it lies within the authority of the legislature to determine where its exercise shall be vested". I should have thought that a particular application of the latter proposition is to be found in Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. 1 for if it be not permissible to entrust to courts functions which cannot be said to be judicial in character it mattered little whether the Presi- dent of the Arbitration Court, as it was then constituted, had been appointed in accordance with constitutional requirements or not. It is true, of course, that the question whether such a course was permissible was not directly decided by the Court but the circum- stance that the Act then under challenge purported to invest the court with "mixed" powers and functions and the possible conse- quences of this were not overlooked. Counsel for the respondent, upon the authority of United States v. Ferreira 2 stated in argu- ment that "Under sec. 51 (xxxv.) of the Constitution the power to settle disputes by means of arbitration might be conferred upon a Court exercising the judicial power of the Commonwealth. There is no reason why the Commonwealth Parliament should not have authority to impose upon a Court exercising judicial power the per- formance of other duties" 3. Counsel for the applicants asserted

1(1918) 25 C.L.R. 434. 2(1852) 13 How. 40 [14 Law. Ed. 3(1918) 25 C.L.R., at p. 437. 94 CLR 341

that " Under sec. 51 (xxxv.), which may be used in conjunction with sec. 71 of the Constitution, it is perfectly proper to create a Court,

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and to arm that Court with the powers incidental to the performance of its purpose of settling disputes " 1. It is clear that no argument to the contrary was addressed to the court but the heresy involved in the propositions as stated-if there was one-was SO fundamental and, I venture to add, must then have been SO palpable, that it could not have escaped detection and exposure. There was how- ever no such exposure. On the contrary three justices of the Court (Griffith C.J. and Higgins and Gavan Duffy JJ.) upheld the impugned provisions in their entirety whilst a fourth (Powers J.) expressly stated that he did not think that any member of the Court con- siders that the constitution of a Commonwealth Court of Concilia- tion and Arbitration, to be presided over by a Judge or Justice duly appointed as Judge of that Court in accordance with S. 72 of the Constitution, to exercise all the powers given by the present Commonwealth Conciliation and Arbitration Act, is beyond the powers of the Parliament of the Commonwealth' 2. Though it is not the practice of this Court to pronounce upon questions which are not directly raised in proceedings before it, it is clear that this matter was before the Court, that it was of transcendent constitu- tional importance, that the views of a number of the Justices were opposed to the argument now advanced in this case and that there is nothing in the reasons of the remaining Justices to support that argument. On the contrary it is perhaps reasonable to say that the only vice which their Honours saw in the legislation was the tenure of office provided by the Act for the appointment of the President. Moreover, this view of Alexander's Case 3 was the one which was acted upon when the court was reconstituted in 1926 and it is a view which has remained unchallenged until now. Lapse of time is of course no answer to a valid constitutional argu- ment but before acting upon a submission which appears to me to be contrary to all the implications of Alexander's Case (3) I should be required to be convinced of the validity of the submission.

The submission does not, however, carry conviction to my mind. On the contrary, whilst I see in Chap. III of the Constitution an exhaustive declaration of the judicial power with which Federal courts may be invested, I see nothing to prohibit Parliament absolutely from conferring other powers or imposing other duties upon them under S. 51. But this does not mean that Parliament may confer upon courts powers and functions which are essentially

1(1918) 25 C.L.R., at p. 438. 2(1918) 25 C.L.R., at p. 479. 3(1918) 25 C.L.R. 434. 94 CLR 342

legislative or executive in character except in SO far as they are strictly incidental to the performance of their judicial functions. The investing of courts with such powers would clearly be in conflict with constitutional principles and, in turn, judicial authority. But "arbitral" functions are not, in my opinion, essentially legislative or executive in character. Indeed, Barton J. in Alex- ander's Case 1 considered that the "arbitral" functions of the Arbitration Court constituted part of the judicial power of the Commonwealth whilst Griffith C.J. 2 found himself unable to make any intelligent distinction between the "arbitral' " and "judicial" provisions of the Act and pointed out, in effect, that

arbitral " is not synonymous with "non-judicial". It is, of course, much too late in the day to contend that "arbitral" functions of the nature created by the Conciliation and Arbitration Act can ever constitute any part of the judicial power of the Com- monwealth, but I mention in passing that the Court in Alexander's Case 3 was not SO much concerned with the question whether such functions could be classified as judicial if committed to a properly constituted court; it was sufficient if they could be made exercisable by a tribunal which was not a court. The notion that powers of an indeterminate character may "achieve ultimate recognition as aspects of the judicial power, not SO much because of their inherent nature or characteristics, but because their performance has been committed to a court in the strict sense " (Reg. v. Davison 4 ) appears to be a subsequent development. It is, however, sufficient to say that "arbitral" functions of the kind in question do not bear the indelible imprint of legislative or executive character; on the contrary an examination of the provisions of S. 51 (xxxv.) may lead to the conclusion that they are of a special character.

The authority conferred upon the Commonwealth Parliament by S. 51 (xxxv.) of the Constitution is expressed as a power to make laws for the peace, order and good government of the Common- wealth with respect to 'Conciliation and arbitration for the preven- tion and settlement of industrial disputes extending beyond the limits of any one State". It is not, as has been frequently observed, a power to legislate with respect to industrial matters or, even, with respect to industrial disputes; the subject matter of the power is conciliation and arbitration for the declared purpose. Accordingly Parliament has no power to make laws directly regulating industrial conditions its authority is limited to the establishment and maintenance of a system, in some form or other, of conciliation and

1(1918) 25 C.L.R., at p. 456. 2(1918) 25 C.L.R., at p. 449. 3(1918) 25 C.L.R. 434. 4(1954) 90 C.L.R. 353, at p. 388. 94 CLR 343

arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

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It has been argued, without success, that arbitration," as used in S. 51 (xxxv.) does not authorize legislation under which the parties to an industrial dispute are required to submit to the deter- mination of a dispute by an arbitrator not appointed either directly or indirectly by the parties (R. v. Commonwealth Court of Con- ciliation and Arbitration; Ex parte Whybrow &Co. 1 ). The position is therefore that this head of power authorizes legislation for the establishment of a system of arbitration which, at the option of the legislature, may be available to the parties if they wish to avail themselves of it or which, on the other hand, will begin to function upon the occurrence of an industrial dispute irrespective of the wishes of either party or, indeed, in spite of their desire to settle their differences otherwise. Likewise, the legislature may, at its option, provide for arbitrators who will represent the parties in dispute or provide an arbitrator who is an entire stranger to the dispute and to the parties. But whatever the composition of the body charged with the function of arbitrating between parties in dispute, 'arbitration" requires that it must act on the ordinary principles of justice involved in the necessity of allowing a hearing to all parties to the difference on which it must decide, and of abstaining from involving in its decision interests of others than the parties to the difference. It is not absolved from this duty by the fact that a Statute has imposed it on the parties as their tribunal, or has compelled them to submit their differences to it ": (per Barton J. in Whybrow's Case 2 ). Accordingly, arbitration presents some features which are characteristic of the exercise of judicial power. It is concerned with a dispute or disputes between parties and it involves a hearing and determina- tion of the matters in dispute. Indeed, "A law which enables a body of persons to settle a dispute by issuing a decree arrived at by discussion amongst themselves without any hearing or deter- mination between the disputants is

not a law with respect to Conciliation and Arbitration for the prevention and settlement of industrial disputes and is not authorized by sec. 51 (xxxv.) of the Constitution' (Australian Railways Union v. Victorian Railways Commissioners 3 ).

The Constitution therefore authorizes Parliament to legislate for the establishment of a tribunal to which the parties to industrial disputes of the specified character are compelled to submit their

1(1910) 11 C.L.R. 1. 2(1910) 11 C.L.R., at pp. 36, 37. 3(1930) 44 C.L.R. 319, at pp. 384, 94 CLR 344

differences and which, in the exercise of its arbitral functions, is bound to proceed, according to the ordinary principles of justice, to hear the parties and to determine the matters in dispute. But, it should be observed, the competence of Parliament does not extend beyond making such provision with respect to industrial disputes "extending beyond the limits of any one State ". The italicized words immediately suggest the reason for the vesting of this power in the Commonwealth Parliament. According to Griffith C.J. (Federated Saw Mill, Timber Yard, &General Wood- workers Employes' Association of Australasia v. James Moore &Sons Pty. Ltd. 1 :- Before the establishment of the Common- wealth industrial disputes (as to the meaning of which term I shall have more to say) had occasionally arisen in the different Colonies, and in two of them (New South Wales and South Australia) tentative legislation had been passed for the purpose of dealing with them by conciliation and arbitration. A similar law had been passed in the neighbouring Colony of New Zealand. Tentative efforts had been also made in the United Kingdom to deal with the same subject. Each Colony had absolute power to deal with the matter within its own limits, but in the event of a single dispute covering an area not within the bounds of any one Colony, there was no legislative authority (except the Parliament of the United Kingdom) which could have dealt with it. This was the state of the law, and this was the defect. The remedy was to authorize the Commonwealth Parliament to make laws for dealing with such disputes, not in any way they might think desirable, but by con- ciliation and arbitration for their prevention and settlement 2. Many other observations to the same effect may be quoted and they reveal the true character of the power. It is a power which is not concerned with and which cannot be exercised with respect to industrial disputes which are confined within the limits of any one State; it is a power which was designed to deal with the situation which arises when, an industrial dispute having spread across State borders, the machinery of any one State is unable to deal effectively with the whole matter.

Nothing of what I have SO far said on this point would, I think, be denied by the prosecutor but from it emerges the notion that the legislative power was intended to authorize Parliament, at least, to employ, in its exercise, instruments of the same character as those then recognized as a usual or commonly accepted instrument of compulsory arbitration in such matters. Indeed to deny to the

1(1909) 8 C.L.R. 465. 2(1909) 8 C.L.R. 465, at p. 487. 94 CLR 345

Commonwealth Parliament the authority to use instruments of the character or characters then in use in the various States would have been to deprive the power of a great deal of its significance.

The history of arbitration as a means of regulating industrial relations has been the subject of considerable discussion (see Federated Saw Mill, &. Employes' Association of Australasia V. James Moore &Sons Pty. Ltd. 1-per O'Connor J. 2 and per Isaacs J. 3-and Australian Railways Union v. Victorian Railways Commissioners 4-per Isaacs J. 5 but for the purposes of the present case it is unnecessary to make any extended survey. Griffith C.J. in the former case 6 referred to the fact that tentative legislation had been passed in New South Wales and South Aus- tralia-and also " in the neighbouring colony of New Zealand for the purpose of dealing with industrial disputes. In the last- mentioned colony the Industrial Conciliation and Arbitration Act became law in 1894. This statute made provision for the registra- tion of societies lawfully associated for the purpose of protecting or furthering the interests of employers or workmen in or in connection with any industry in the colony and set up Boards of Conciliation and a Court of Arbitration. The various boards, within their respective districts, were charged with the settlement of industrial disputes and the court, presided over by a judge of the Supreme Court, was given jurisdiction to determine any dispute referred to it by a board. The court was not given power by this enactment to enforce its own awards, provision being made for their enforce- ment in the same manner as a judgment of the Supreme Court after the filing in that court of a duplicate of any award. But by the Industrial Conciliation and Arbitration Act Amendment Act 1898 the Court of Arbitration was given power to fix (s. 3) and impose (s. 83) penalties for the breach of any award and it was further given full and exclusive jurisdiction to deal with all offences against the Act. The system erected by the New Zealand Statutes of 1894 and 1898 was adopted in Western Australia by the Industrial Conciliation and Arbitration Act 1900. The provisions of the New Zealand legislation were adopted almost literally and, as in the latter colony, a court was created for the purpose of exercising arbitral and judicial functions side by side. In addition to having authority to fix and impose penalties for breaches of awards and full and exclusive jurisdiction to deal with all offences against the Act it was invested with power to grant injunctions and prohibitions

1(1909) 8 C.L.R. 465. 2(1909) 8 C.L.R., at pp. 502 et seq. 3(1909) 8 C.L.R., at pp. 522 et seq.

4(1930) 44 C.L.R. 319. 5(1930) C.L.R., at pp. 354 et seq. 6(1909) 8 C.L.R., at p. 487. 94 CLR 346

and to issue writs of mandamus and generally to exercise the powers of the Supreme Court in the administration of the Act. The "tentative" legislation in New South Wales (the Arbitration Act 1892 and the Conciliation and Arbitration Act 1899) were followed by the Industrial Arbitration Act 1901 which set up a Court of Arbitration, presided over by a judge of the Supreme Court, for the hearing and determination of industrial disputes. In addition to its arbitral functions it was given power` " to deal with all offences and enforce all orders under" the Act (s. 26 (n) ), to grant injunc- tions restraining the breach or non-observance of any award (s. 37 (4) and to impose fines for any such breach or non-observance (s. 37 (8) ). The industrial legislation of the other States does not appear to have embodied those features. According to Isaacs J. (Federated Saw Mill &. Employes' Association of Australasia V. James Moore &Sons Pty. Ltd. 1 :-" Some States were without any legislation whatever on the subject no two States were uniform all of the Acts were inadequate to cope with admitted evils, even domestic and with the advent of intercolonial free trade and the enlargement of intercourse the mischief manifestly might be more extensive and more destructive in the Common- wealth about to be created" " 2. The New South Wales Act of 1901 became law after Federation but sufficient has been said to indicate that the concept of a court having cognizance of industrial disputes and possessing full power to enforce its own awards was by no means unknown before that time. On the contrary it was a well-recognized concept and, though differing views may have been entertained concerning the wisdom of creating tribunals possessing both arbitral and judicial powers, it was a concept which, if the matter fell to be determined by consideration of the language of par. (xxxv.) alone, was clearly embraced by the terms in which the power was defined. I find myself in agreement with Isaacs J. (Federated Saw Mill &. Employes' Association of Australasia V. James Moore &Sons Pty. Ltd. (1) when, after discussing the meaning of "arbitration" and referring to pre-Federation legislation, he said "When therefore there was entrusted to the Commonwealth Parliament the plenary power of legislating upon the familiar subjects of conciliation and arbitration for the settlement of indus- trial disputes extending beyond the limits of any one State, it appears to me an irresistible inference that the grant with respect to such disputes was as full and unrestricted as a State already

1(1909) 8 C.L.R. 465. 2(1909) 8 C.L.R., at p. 526