I give personal and not official opinions in this article but as the first, and so far only, President of the Commonwealth Conciliation and Arbitration Commission the conciliation and arbitration I discuss shall be those in the national area.

The Commission’s work comes under fire from many directions. Those who see it as a predominantly legal institution are very critical. Curiously enough they divide into two opposing sections, the one pointing to the Commission’s failure to adhere strictly to a predictable judicial process and the other condemning it for being too legalistic. On the other hand, there are those who look on the Commission as an economic legislative body and criticise its alleged inability to gauge the impact of its decision making policy on the level of economic activity in Australia. Indeed, all criticisms, if one adopts the exclusively particular view of the Commission which each set of critics has, may have some justification.

One of the more obvious characteristics of Australian federalism hitherto has been the marked reluctance of the Commonwealth to utilize its legislative powers to the full. The only two areas where the limits have been explored with any determination are taxation and industrial disputes. The phenomenon is no doubt a complex one, not to be explained solely or even primarily by reference to the structure of the Constitution or its interpretation by the High Court. Nevertheless both must have a bearing upon it.

It would be, for instance, hard to doubt that the Commonwealth has been made lazy in its legislative approach to government by the refusal of the High Court to imply any strict demarcation between legislative and executive functions, and by the Court’s generous interpretation of the scope of the power to attach conditions to money grants to the States under section 96. Similarly, growth of the trade and commerce power manifestly has been inhibited by the scope given to section 92, in marked contrast to the lack of interest shown by the Court in giving substantial content to the prohibition on preference in section 99 in relation to revenue laws.

Judicial review of the validity of legislation in a federal system may be regarded as an exercise in the interpretation of legal texts—ascertaining whether the impugned law conflicts with the superior law of the constitution—and therefore as a matter of law in which evidence plays no part or at best a subsidiary one. In the seminal case of Marbury v. Madison, Marshall C.J. ,thus described judicial review: “If two laws conflict with each other”, then in that event “the courts must decide on the operation of each”.

By section 75(iii) and (iv) of the Commonwealth Constitution, the High Court is granted original jurisdiction to hear “matters” between the various Australian governments. As yet, most inter-governmental cases heard by the High Court have been disposed of by interpretation and application of the Constitution, but it is clear that the High Court must have recourse to legal sources outside the Constitution. A study of the cases so far heard by the High Court, the types of disputes that might arise, application of the common law in other areas of law and experience in other federations reveals that the common law is applicable to Australian inter-governmental cases. Not only this, but there exists a body of “inter-state common law” specifically referable to intergovernmental disputes. Strands of this inter-state common law are to be found in the law covering rights of governments and their Attorneys General to sue other governments on behalf of their residents, intergovernmental agreements, nuisance and inter-State water disputes.

Over the years there have been established, at Commonwealth and State levels, a multiplicity of independent or semi-independent public bodies outside the traditional departmental structure. As far as conditions of employment with such bodies are concerned, some fall within the Public Service Board system, while others are governed by separate legislation which tends, however, to bear considerable similarities to the prevailing Public Service Board system. In addition, there may be some intersection of institutions—in New South Wales, for example, employees of a number of bodies which are not under Public Service Board control have, in common with public servants, a right of appeal to the Crown Employees' Appeal Board (though railway and transport employees retain their own appeal tribunal).

Proceedings in some Australian legislatures in recent years in relation to alleged contempts of Parliament and breaches of Parliamentary privilege have been followed by a similar episode in the House of Assembly of the Territory of Papua and New Guinea. The proceedings in the Territory are noteworthy not only because they were the first of their kind there, but also because they drew attention to substantial and unforeseen difficulties in attempts to transfer the power to deal with contempts and breaches of privilege from Parliament to the courts. The House of Assembly of the Territory of Papua and New Guinea, along with the Legislative Council of the Northern Territory, has effected through legislation an abdication of its powers to punish those persons found guilty of contempts. This transfer of power from Parliament to the courts has been shown to be of uncertain extent by the proceedings in the House of Assembly. The fact that even a partial delegation of this power has been achieved in these two jurisdictions distinguishes the two territorial legislatures from those of all the Australian States and from the House of Representatives of the Parliament of the Commonwealth, which have generally preserved to themselves the power to deal with alleged breaches of privilege. As will be seen, this transfer of power presents the two territorial legislatures with novel and distinctive problems, no solution to which has yet been reached.