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.

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.

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.