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.

There was a time when Australia, in common with New Zealand, provided a lead to the world in formulating new and constructive legislative measures; the statutes relating to the system of Torrens title, testators family maintenance and industrial arbitration were the expression of a legislative spirit which was anxious to grasp difficult problems and solve them with an imaginative and practical approach. It may be said that this legislation was primarily social in character and that it was the distinctive contribution of the democratic and egalitarian society which had emerged in this part of the world towards the end of the nineteenth century. The substantial accuracy of this observation may be admitted, except in its application to the Torrens title legislation, but the comment should not be allowed to obscure the very considerable legislative activity which took place contemporaneously and which was of domestic significance.

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.

The decision of the High Court in Capital T.V. and Appliances Pty Ltd v. Falconer makes a further contribution to the step by step effort of the Court to develop a coherent doctrine with respect to the place of the Commonwealth Territories in the federal system. It goes some way towards answering the questions that arise with respect to the jurisdiction that may be exercised by territorial courts on the one hand, and on the other hand, the jurisdiction that may be exercised by federal courts, and State courts invested with federal jurisdiction, in respect of matters having a relationship with a Territory.

The matters decided were simply that the Supreme Court of the Australian Capital Territory is not a federal court, but is a territorial court established by virtue of the powers of the Parliament under section 122 of the Constitution, nor is it a court exercising federal jurisdiction. The Court did not find it necessary to decide whether the tenure of office of the judges of the Supreme Court met the requirements of section 72 of the Constitution with respect to federal courts. It held that, even assuming that those requirements were met, the Supreme Court was not a federal court. This conclusion was based on the intention of Parliament, as appearing from the words used to create the Court and the scope of the jurisdiction conferred on it. Further, it was held that the only courts “exercising federal jurisdiction”, apart from federal courts, are State courts invested with federal jurisdiction.

The power of the Commonwealth to confer authority on members of the Executive or Administration is restricted by the Constitution in two major respects—first, by the principle of the separation of powers, and secondly, by the doctrine that no law can give power to any person (other than a court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine is sometimes metapholically summed up in the maxim “the stream cannot rise above its source”. The separation of powers principle affects a wider range of decision-making than the “source and stream” doctrine; but the latter doctrine, within the area of its operation, appears to be a greater limitation on legislative power.

For example, the principle of the separation of powers seems to prevent an Act from validly conferring power on an administrator to make conclusive determinations of law (and possibly findings of fact). in the course of settling a dispute about existing rights and duties. But where the power confided to the administrator to make findings of existing law or fact is merely preliminary to the creation of new rights and duties, then, in some circumstances at any rate, such power of detennination will not breach the separation of powers principle.

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.

When Mr Cyril Worthing fell and suffered InjUrieS during his inspection of building work at the Richmond Air Force Base there was not only an alleged gap in the scaffolding but also a very significant gap in the law. For when he sued the defendant contractors for damages for breach of alleged statutory duty under the Scaffolding and Lifts Act, 1912-1965 of New South Wales, the High Court held in Worthing v. Rowell and Muston Pty Ltd and Others that the State scaffolding regulations, made after the Commonwealth's acquisition, did not apply in “places acquired by the Commonwealth for public purposes” within the meaning of section 52(i.) of the Constitution.

Section 52(i.) of the Constitution provides as follows:

52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to—

(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.

The announcement by the former Attorney-General, Mr. T. E. F. Hughes, at a meeting of Attorneys-General on July 9, 1970 that the Commonwealth Government was investigating the possibility of introducing a system of family courts into Australia and that a senior officer of his Department would visit overseas countries to study the operation of such courts has raised a number of questions as to the possible form that they would be likely to take. Since then, the officer concemed has made his investigation and returned, and there has been a change in the occupancy of the office of Attorney-General. Apart from that slender factual background there can be only speculation. From speculation one turns to a consideration of the legal and constitutional framework within which the Commonwealth's power to manoeuvre is to be found. It is the existence of that framework and the limitations it brings with it that distinguishes Australia's position from that of most overseas countries. That circumstance alone will of necessity influence any action the Commonwealth may be minded to take in the direction of family courts.

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.