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[1972] HCA 54
High Court of Australia
1972-07-01
Mason JJ, Menzies JJ, McTiernan J, Walsh J
Original judgment source is linked above.
High Court of Australia McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ. Cominos v Cominos [1972] HCA 54
ORDER The question whether ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959-1966 Cth are invalid is answered: No. Order that the cause be remitted to the Supreme Court of South Australia and that the petitioner's costs of and incidental to the determination of the said question be paid by the respondent to the petitioner.
This matter is in this Court by by virtue of s. 40A of the Judiciary Act. A suit for divorce and other relief, including permanent maintenance, the settlement of property, and costs, was commenced by the petitioner against the respondent in the Supreme Court of South Australia. In that Court, the respondent challenged the validity of certain sections of the Matrimonial Causes Act 1959-1966 Cth - the Act - namely, ss. 84, 86, 87 (1) and 125. Accordingly, a question arose as to the limits inter se of the powers of the Commonwealth and the States. The cause was accordingly removed to this Court. It came on for hearing before the Full Court, and the question having been raised concerning argument of the cause before the Full Court, an application was made under s. 18 of the Judiciary Act to a single Justice to direct that the inter se question involved be argued before the Full Court. This direction was given by McTiernan J. and, accordingly, the question for the Full Court is the validity of ss. 84, 86, 87 (1) and 125 of the Act.
These sections all operate to confer powers upon the Supreme Courts of the States. The Supreme Court of each State is invested with jurisdiction to hear and to determine matrimonial causes instituted under the Act, s. 23. The sections in question confer ancilliary powers upon a Supreme Court of a State in the hearing of a matrimonial cause: Lansell v. Lansell [4] ; Sanders v. Sanders [5] .
The validity of the sections in question depends upon s. 77 (iii.) of the Constitution which authorizes Parliament to make laws investing the courts of a State with federal jurisdiction. The point taken is that the sections in question are so widely expressed that the powers conferred do not fall within the description of federal jurisdiction because they go beyond what falls within the scope of judicial power. It is well established that, by virtue of s. 77 (iii.), State courts can only be invested with judicial power - Queen Victoria Memorial Hospital v. Thornton [1] .
In our opinion, the challenge fails because it is a recognized part of judicial power to make orders of the sort authorized by the sections in question in the exercise of judicial power to hear and to determine matrimonial causes. The powers conferred by the sections are ancilliary too, and take their colour from, the valid grant of jurisdiction to hear and determine matrimonial causes. Accordingly, we hold that the sections are valid as part of the investment of State courts with federal jurisdiction by virtue of the Constitution, s. 77 (iii.).
In the circumstances already stated, we think that the Full Court should do no more than declare that the sections impugned are a valid exercise of the constitutional powers of the Parliament of the Commonwealth. The cause can then be dealt with by the single justice by whom the question of validity was referred to the Full Court.
In a suit instituted in the Supreme Court of South Australia seeking a decree for dissolution of marriage the petition included prayers for an order for permanent maintenance for the petitioner and her infant children, for an order directing the respondent to transfer to her all his estate and interest in certain land or such other order by way of settlement of property as the Court should deem fit, and for an order for costs.
Before the suit was heard, the respondent set out in writing certain contentions which he proposed to raise in the suit. These included the contention that ss. 84, 86, 87 (1) and 125 of the Matrimonial Causes Act 1959 Cth, as amended (the Act), are invalid. The suit was removed into this Court under s. 40A of the Judiciary Act. The question as to validity of the said provisions of the Act has been argued before a Full Court.
The ground upon which the invalidity of the challenged provisions is asserted is that each of them purports to confer upon the Court a power or function which is non-judicial. It is submitted that it is beyond the competence of the Parliament of the Commonwealth to confer such a power or function upon the Supreme Courts of the States, which by s. 23 (2) of the Act have been invested with federal jurisdiction to hear and determine matrimonial causes: see Queen Victoria Memorial Hospital v. Thornton [1] . The basis upon which it is submitted by counsel for the respondent that the powers conferred by the challenged provisions are not within the scope of judicial power is that the discretion given to the court is so complete and unfettered that it may be said that the legislature has attempted to delegate to the court a legislative function. It is said that judicial power cannot be exercised unless what the court may do is governed and bounded by some ascertainable test or standard. Where power is conferred in such terms that what the court may do is left entirely at large, it cannot be said that the court is required to exercise judicial power.
In my opinion it is clear that these submissions should be rejected. The authorities upon which reliance was placed in the able argument on behalf of the respondent do not, in my opinion, support the view that in the hearing of matrimonial causes under the Act the Court is required or is entitled to exercise a discretion of an arbitrary kind which is not a judicial discretion. Counsel referred to Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia [1] . It was there decided that certain powers given to the Commonwealth Industrial Court by the Stevedoring Industry Act 1956 Cth were powers which, upon the proper construction of the enabling provisions and having regard to the history of those provisions, were intended to be governed by administrative and industrial considerations, taking into account matters which might appear relevant to a sound and wise administrative control over the stevedoring industry. In the joint judgment of four members of the Court it was stated [2] :
The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. 1. (1957) 100 C.L.R. 312. 2. (1957) 100 C.L.R., at p. 317.
In Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [3] , Kitto J. expressed the opinion that the power to determine whether restrictions or practices of certain kinds described in the Act then under consideration were contrary to the public interest was a power to determine a question which did not depend upon the application of an ascertained criterion or of any objective test or standard supplied by the legislature. He considered that the question was whether the restrictions or practices satisfied a description the content of which had no fixity and which referred the tribunal ultimately "to its own idiosyncratic conceptions and modes of thought". His Honour cited [1] the passage I have quoted above from Reg v. Spicer; Ex parte Waterside Workers' Federation of Australia [2] . It has been submitted that the statements made in those two cases, referring to tests and standards by which a discretionary power is to be governed, support the view that in the relevant provisions of the Act there has been such a failure to direct the court concerning the tests by reference to which its powers are to be exercised that in making orders pursuant to those provisions it cannot be said to be exercising judicial power. But it is quite incorrect, in my opinion, to say that in exercising its powers under those provisions (assuming they are valid, the court is at liberty to act in an arbitrary way or is at liberty to give effect (in the phrase used by Kitto J. [3] ) to "its own idiosyncratic conceptions and modes of thought". The court is not at liberty, in making under s. 84 (1) of the Act such order "as it thinks proper" or in making under s. 86 (1) of the Act an order requiring a party to make such a settlement of property as it considers "just and equitable in the circumstances of the case", to act upon broad policy considerations, unrelated to the facts of the particular case or to what is adjudged appropriate to the means, interests and needs of the parties to the marriage or the children of the marriage.
In considering the powers conferred by ss. 84, 86 and 87 of the Act, it is necessary to have regard to the jurisdiction which the court has been given to hear and determine matrimonial causes of the kinds set out in pars. (a) and (b) of the definition of matrimonial cause in s. 5 of the Act, that is to say, proceedings for a decree of dissolution of marriage or for some other decree or declaration which constitutes the principal relief sought by one party to a marriage against the other. It is beyond dispute that when hearing and determining such proceedings for principal relief, the court is exercising federal jurisdiction with which it has been validly invested and is engaged in the exercise of judicial power. It is in relation to proceedings of that kind (whether pending or completed) that the court is empowered also to make orders in accordance with ss. 84, 86 and 87. Those provisions are to be construed and applied as provisions conferring powers in aid of the exercise of the jurisdiction to hear and determine proceedings for divorce and other forms of substantive matrimonial relief. That being so, it is impossible to maintain that the discretion conferred upon the court is not a judicial discretion or that it is not governed or bounded by any ascertainable test or standard, but is entirely arbitrary in its nature. What I have just stated as to the character of orders for maintenance or for the settlement of property and as to the relationship of the powers to make such orders to the jurisdiction to hear and determine substantive matrimonial causes need not be elaborated, since these questions have been considered in earlier judgments of this Court, including Lansell v. Lansell [1] and Sanders v. Sanders [2] .
In submissions directed specifically to s. 86 (1) of the Act, counsel relied upon the use in that provision of the words "just and equitable". These words were said to leave the court at liberty to make an order without regard to any definite standard or test. But in Lansell v. Lansell [1] the Court decided expressly that the enactment of s. 86 (1) was a valid exercise of the power of the Commonwealth Parliament. Although the ground of challenge to its validity which is put forward in the present case was not considered in terms by the Court, the reasons for the decision are inconsistent with the assertion that there is no boundary or limit upon the court's exercise of its power under s. 86 (1). The court is directed to consider what is just and equitable in the circumstances of the case. It must decide what are the circumstances of the case. It must consider the question, what settlement, if any, for the benefit of all or any of the parties to the marriage and the children of the marriage, would be in those circumstances just and equitable. It may then make an order directing such a settlement. In my opinion, the court when so acting is clearly engaged in the exercise of judicial power. The suggestion that this is not so for the reason that the court is empowered to do what it considers just and equitable is not supported by authority. The submission is, in my opinion, inconsistent with the observations in Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [3] , of Latham C.J. [4] (with whom McTiernan J. agreed) and of Williams J. [5] .
The challenge to the validity of s. 84 must be rejected, not only for reasons already given, but also because by that provision the court is directed to have regard "to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances". Thus, the scope of the power and the manner in which it is to be exercised are marked out both by the fact that the purpose of the power is the provision of maintenance of a party to the marriage or for the children of the marriage and by the directions given by the court as to the matters which are to be taken into account.
Section 87 (1) requires no more than a brief mention. It confers powers in aid of the carrying out by the court of its powers under other provisions of Pt VIII of the Act. The power mentioned in par. (1) of s. 87(1) to make any other order which the Court thinks it is necessary to make to do justice is incidental to the powers conferred by those other provisions. In my opinion, there is no sound basis for a contention that any of the powers enumerated in s. 87 (1) are outside the scope of judicial power.
In my opinion, it is plain that s. 125 of the Act by which authority is given to the Court to make such orders as to costs as it thinks just is valid.
It should be mentioned in conclusion that in Kotsis v. Kotsis [1] , which was concerned with the making of an order for interim costs, and in Knight v. Knight [2] , in which maintenance pending suit was sought, it was taken for granted that the making of such orders involved an exercise of the judicial power of the Commonwealth and in each of those cases the acceptance of that proposition was basic to the decision.
In my opinion, the Court should declare that the challenged provisions are valid and should order that the cause be remitted to the Supreme Court of South Australia for trial.
By a petition presented in the Supreme Court of South Australia, Reveka Cominos ("the petitioner") sought a decree of dissolution of her marriage with Max Cominos ("the respondent") and orders for, inter alia, permanent maintenance, the settlement of certain property of the respondent for the benefit of the petitioner, and costs. In the course of the proceedings the respondent filed a document by which he contended that a judge of the Supreme Court, sitting in matrimonial jurisdiction under the Matrimonial Causes Act 1959-1966 Cth ("the Act"), has no power to make any orders in respect of maintenance, settlement of property or costs and that ss. 84, 86, 87 (1) and 125 of the Act are invalid. The learned judge of the Supreme Court before whom the matter was brought held that a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States had arisen and that the cause was removed to this Court by virtue of s. 40A of the Judiciary Act. The question was accordingly argued before us.
The sections whose validity is challenged, so far as it is necessary to set them out, are as follows:
(2) Subject to this section and to the rules, the court may, in proceedings for an order for the maintenance of a party to a marriage, or of children of the marriage, pending the disposal of proceedings, make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(3) The court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
(4) The power of the court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.
(2) The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante -nuptial or post-nuptial settlements on the parties to the marriage, or either of them.
(3) The power of the court to make orders of the kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of twenty-one years unless the court is of opinion that there are special circumstances that justify the making of such an order for the benefit of that child.
(1) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this sub-section, and whether or not it is in accordance with with the practice under other laws before the commencement of this Act) which it thinks it is necessary to make to do justice.
"The court", in these sections, means the Supreme Court of a State or of a Territory (ss. 5 (1) (the court); 23 (2)), but so far as the present case is concerned "the court" exercising jurisdiction was of course the Supreme Court of South Australia.
It was argued on behalf of the respondent that these sections are invalid in that they attempt to confer on the Supreme Courts of the States powers which are not judicial in character. For the purpose of deciding the present case I find it unnecessary to consider or discuss the doctrines enunciated in the Boilermakers' Case (Attorney-General (Cth) v. The Queen [1] ) and Queen Victoria Memorial Hospital v. Thornton [2] . The respondent cannot succeed in his challenge to the validity of the sections unless he establishes that they do attempt to invest the Supreme Courts of the States with non-judicial power, and, notwithstanding the helpful argument of Mr. Debelle, who has advanced everything that could properly be said on behalf of the respondent, I have reached the clear conclusion that the powers which the sections confer are judicial powers.
It may be remarked at the outset that the contentions of the respondent are directly opposed to authority. The decisions of this Court in Kotsis v. Kotsis [3] and Knight v. Knight [4] proceeded upon the assumptions that the making of an order for costs under s. 125 of the Act and the making of an order for maintenance under s. 84 of the Act involved the exercise of judicial power. In Lansell v. Lansell [5] , it was held that s. 86 (1) is a valid exercise of the power of the Commonwealth to make laws with respect to divorce and matrimonial causes pursuant to s. 51 (xxii.) of the Constitution. In that case, however, it was not contended that s. 86 invalidly attempted to invest the Supreme Courts with non-judicial power, and in Kotsis v. Kotsis [6] and Knight v. Knight [4] the assumptions that I have mentioned were not questioned. Accordingly, I proceed to consider on their merits the submissions advanced by the respondent.
The argument of the respondent takes as its starting point a statement from the judgment of the Court in Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia [1] :
The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. Similarly, in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [2] , Kitto J., speaking of powers conferred on the Tribunal set up by the Trade Practices Act 1965-1968 Cth, said: To confer a power of discretionary judgment as to whether a restriction or practice has a specified quality may be to confer judicial power, but only if the quality is so described that its existence is to be judged by applying an objective test or standard supplied by the legislature. It was submitted that by each of the impugned sections of the Act the Parliament has attempted to confer on the court a discretion which is arbitrary rather than one which must be exercised in accordance with ascertainable or objective tests or standards laid down in the legislation itself. It is true that s. 84 requires the court, in considering an application for an order for maintenance, to have regard "to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances", but it was said that the words "all other relevant circumstances" would allow the court to have regard to any other matters which it deemed to be relevant, and thus give the court a virtually unfettered discretion as to what matters might be considered. For example, it was said, Parliament has not declared whether it would be a relevant circumstance that one or other of the parties to an application for maintenance is in receipt of a pension, or has potential rights as a claimant under testator's family maintenance legislation or has the custody of the children of the marriage. Section 86, unlike s. 84, does not expressly refer to any matters to which the court should have regard in the exercise of its discretion but, provided that the specified conditions for its exercise exist, leaves it to the court to do what it considers "just and equitable", and it was submitted that the section grants in wide and vague terms an extensive power to vary proprietary rights without giving any guide as to the manner in which the discretion is to be exercised. Section 87 (1) gives a power to make other orders, but, it was said, places no restriction on the kind of order that may be made. Section 125 gives the court power to make such orders for costs as it thinks just. It was said that all these sections leave the court free to make its decision by giving effect to considerations of social policy and that the powers attempted to be conferred are legislative rather than judicial. 1. (1957) 100 C.L.R. 312, at p. 317. 2. (1970) 123 C.L.R. 361, at p. 377.
These arguments were addressed with especial force to s. 86 and it is therefore convenient first to turn to consider that section. The nature of the power which s. 86 confers was discussed in Lansell v. Lansell [1] . It was there made clear that an order for settlement of property under s. 86 may be made only as a form of incidental relief in a substantive proceeding, actual or completed, of a kind described in par. (a) or (b) of the definition of matrimonial cause in s. 5 (1) of the Act. In other words, the section gives power to make only such orders as are ancillary or incidental to proceedings that are incontestably judicial proceedings. The power given is, of course, conferred only upon a court. It is to be exercised in the course of a controversy between parties and not by the court upon its own motion but in proceedings instituted as required by s. 68 (3) of the Act and, of course, after both parties have had an opportunity to be heard. The order of the court, although subject both to variation (s. 87 (1) (j)) and appeal (s. 92) is, while it stands, binding and effective (s. 94 and s. 5 (2) decree). The power is thus one that is exercised as an incident to judicial proceedings, it is committed to a court and a judicial process is prescribed for its exercise. It can hardly be doubted that such a power is itself judicial (cf. Reg. v. Davison [2] ). It is true that in determining an application under s. 86 the court, after deciding such questions of fact and law as have arisen, is called upon to make a discretionary judgment. The discretion, although wide, must, as was said by Windeyer J. in Sanders v. Sanders [3] , "be exercised according to accepted principle, for what is just and equitable in this jurisdiction is not a matter of unfettered individual opinion". It is not a discretion of an arbitrary kind. The standard imported by the familiar words "just and equitable" is "by no means foreign to the judicial function" (cf. Steele v. Defence Forces Retirement Benefits Board [4] nor is it "so indefinite as to be insusceptible of strictly judicial application" (cf. Reg. v. Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section [5] ). It is also true that s. 86 enables the court to create new rights and impose new duties and not merely to enforce legal right already existing, but the fact that a court is authorized to create or alter rights and not merely to declare and give effect to pre-existing rights does not necessarily show that the powers conferred are not judicial powers: Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [1] .
For the reasons given, in my opinion s. 86 confers judicial power. It is unnecessary to deal at any length with the other sections that are challenged. Much of what I have said in relation to s. 86 applies to those sections also, but in relation to s. 84 and s. 125 there is the additional, and powerful, consideration that orders as to maintenance and costs have traditionally been regarded as forming a part of the exercise of judicial power; the fact that these powers have as a matter of history been regarded as appropriate to be discharged by the courts is an additional reason for regarding them as judicial: see Reg. v. Davison [2] . It cannot be said that the power given by s. 84 is not of a judicial kind simply because that section does not attempt to set out in detail what circumstances are relevant and what are not, for decisions as to relevance form an every-day incident of judicial proceedings. Section 87 (1) merely aids the exercise of judicial powers conferred on the court by other sections in Pt VIII of the Act. I hold, therefore, that all the sections in question confer judicial powers.
In my opinion it should be declared that the challenged sections are valid and the cause should be remitted to the Supreme Court of South Australia.
This petition for dissolution of marriage was removed into the High Court pursuant to s. 40A of the Judiciary Act upon the raising by the respondent husband of questions concerning the validity of sections of the Matrimonial Causes Act 1959-1966 Cth and affecting the limits inter se of the constitutional powers of the Commonwealth and those of the States.
The only question which has been argued before us is whether, in investing the Supreme Court of each State with jurisdiction to hear and determine matrimonial causes instituted under the Matrimonial Causes Act 1959-1966, the Commonwealth Parliament has in certain respects exceeded its powers by purporting to confer upon State Supreme Courts non-judicial functions. It is contended on behalf of the respondent that ss. 84, 86, 87 (1) and 125 of that Act confer such wide discretionary powers, devoid of criteria or of statutory standards, that in their exercise a court is not exercising judicial power but is, instead, engaged in the employment of a quite arbitrary discretion and is undertaking a function of a legislative rather than judicial character.
Federal courts may not have non-judicial functions conferred upon them - Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1] - nor may Federal Parliament, in the exercise of its powers under s. 77 (iii.) of the Constitution, invest State courts with non-judicial functions. The validity of such an investing was discussed but not determined in Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. [2] , where the Chief Justice said:
Administrative or ministerial powers may be conferred upon State courts by the Commonwealth Parliament as auxiliary to the performance of judicial functions in the exercise of Federal jurisdiction invested in such courts (Bond v. George A. Bond & Co. Ltd. and Bond's Industries Ltd. [3] ). But it has not yet been decided that in the case of State courts other than judicial functions and functions incidental to judicial functions can be conferred upon them by the Commonwealth so as to place those courts under a duty to exercise such powers. Upon the view which I take (that the powers are judicial), it is not necessary to decide this question in the present case. However in British Medical Association v. The Commonwealth [4] , the Chief Justice described the power of Parliament to invest State courts with Federal jurisdiction as limited to jurisdiction of a judicial character, there being no constitutional power to require State courts to exercise any form of non-judicial power, a view also accepted by Dixon J. [5] , and in Queen Victoria Memorial Hospital v. Thornton [6] , the Court held that federal legislation could not require a State court to perform functions which were not within the judicial power of the Commonwealth and thus outside s. 77 (iii.) of the Constitution. 1. (1956) 94 C.L.R. 254, at pp. 271-272; [1957] A.C. 288, at pp. 313, 314; (1957) 95 C.L.R. 529, at p. 538. 2. (1943) 67 C.L.R., at p. 37. 3. (1930) 44 C.L.R. 11. 4. (1949) 79 C.L.R. 201, at p. 236. 5. (1949) 79 C.L.R., at pp. 257-258. 6. (1953) 87 C.L.R. 144.
It follows that if sections of the Matrimonial Causes Act do involve the exercise of powers which are not within the judicial power of the Commonwealth then the investing of those particular powers in the Supreme Courts of the States by s. 23 (2) of that Act will be beyond power.
Three of the four sections of the Matrimonial Causes Act which are said to confer arbitrary discretions inconsistent with the concept of judicial power are to be found in Pt VIII of the Act. The first, s. 84, deals with the making of orders for the maintenance of the parties to or the children of a marriage; the second, s. 86, with the making of orders requiring a party to a marriage to make a settlement of property for the benefit of the other party to or the children of that marriage and with the application of property subject to existing settlements for the benefit of a party to or the children of that marriage; the third, s. 87 (1), confers a wide variety of specific powers upon courts exercising powers under Pt VIII. The last section under attack, s. 125, confers power to make orders as to costs and security for costs.
In the exercise of its power under s. 84 (1) a court is required to have regard to the "means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances"; sub-s. (2), dealing with maintenance pendente lite, is to the same effect. Section 84 was attacked upon two distinct grounds; that it omitted reference to certain considerations which should have been specifically referred to and that, by the inclusion of the phrase "all other relevant circumstances", it failed to restrict in any way the range of other considerations to which a court might have regard. Thus it was said that specific reference should have been made to the pension entitlement of either party and to possible rights under testator's family maintenance legislation. Whatever validity, if any, this criticism may have if directed to the wisdom of the legislature in its selection of matters for specific enumeration it is, I think, of no substance as an attack upon constitutional validity; the omission of one or more considerations thought by some to merit specific reference in the section will not alter the character of the power which it confers upon courts.
The second ground of attack is, I think, of no greater weight; to require a court to have regard to other relevant circumstances does not thereby confer upon it arbitrary powers or require it to depart from the exercise of judicial power and embark upon a legislative or administrative task guided only, as was suggested, by its own unfettered views of desirable social policy. The circumstances to which a court can have regard are not only restricted by the test of relevancy but also by the very nature of the task it is undertaking when exercising powers under s. 84, the task of determining what is a proper order for maintenance of a party or of the children of the marriage. What it may have regard to in the way of other unspecified but relevant circumstances is further affected by the three considerations which the section does enumerate.
For myself, I can see nothing in s. 84 which would lead to the conclusion that by investing a State court with the powers which that section confers Parliament has done other than invest it with a part of the judicial power of the Commonwealth. It is perhaps proper to remark that counsel for the respondent conceded that the attack based upon s. 84 met, in his view, with greater difficulties than did that founded upon s. 86.
In s. 86 both the making of settlements, under sub-s. (1), and the application of already settled property to new purposes, under sub-s. (2), is made to depend upon the court considering it "just and equitable" to do so in the circumstances of the case. Both the property which may be made subject to an order and the persons in whose favour an order may be made do themselves provide some limits to the matters to be taken into consideration in exercising the discretionary power conferred; the property is confined, in sub-s. (1), to property to which the parties or either of them is entitled and, in sub-s. (2), to property already settled on the parties or either of them; the objects of orders are limited to the parties and the children of the marriage and, in the case of such children, are, by sub-s. (3), further limited to infant children in the absence of special circumstances.
The phrase "just and equitable" is not itself indicative of the grant of any arbitrary discretion; in Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1] , Windeyer J. referred to the phrase "contrary to the public interest" appearing in the quite different legislation there under consideration and said of it:
that phrase seems to me to embody considerations much further removed from traditional judicial concepts than those which the words "just and equitable" express when applied in a controversy between parties. The public interest is a concept which attracts indefinite considerations of policy that are more appropriate to law-making than to adjudication according to existing law. In Sanders v. Sanders [2] , his Honour said of the words "just and equitable" in s. 86 (1) of the Matrimonial Causes Act: The discretion must of course be exercised according to accepted principle, for what is just and equitable in the jurisdiction is not a matter of unfettered individual opinion. Even such admittedly vague criteria as "offensive", "unreasonable" and "unjust" were thought by this Court to be capable of being applied by the Commonwealth Industrial Court to the contents of rules of industrial organisations without that court going outside the proper exercise of the judicial power of the Commonwealth - Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section [1] . In Peacock's Case [2] Williams J. pointed out that a requirement that a tribunal should act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms or the rules of evidence need not result in the exercise of its powers being other than the exercise of the judicial power of the Commonwealth. 1. (1970) 123 C.L.R., at pp. 399-400. 2. (1967) 116 C.L.R. 366, at p. 379. 3. (1960) 103 C.L.R. 368, esp. at p. 383. 4. (1943) 67 C.L.R., at pp. 55-56.
Section 86, unlike s. 84, contains no enumerated matters to which courts must have regard in exercising the powers it confers but it was pointed out by Kitto J. in Lansell v. Lansell [3] , there were good reasons for this because:
in considering under s. 86 (1) what is just and equitable in the circumstances the court is not restricted to considerations relevant to maintenance. The question for the court, when acting under s. 86 (1), was, his Honour said, whether any and what settlement as a means of dealing with the available property was just and equitable in the circumstances of the case, and the time and circumstances of the acquisition of the property might have a significant, or even a decisive, bearing on the answer to this question. 1. (1964) 110 C.L.R. 353, at p. 362.
This Court, when it has in the past had to consider the effect of s. 86, has indicated that the exercise of the powers conferred by that section is subject to the usual restraints applicable to courts in their exercise of judicial power. In Sanders v. Sanders the Chief Justice said [4] , that s. 86, although complementary to s. 84, would also extend to situations other than the provision of maintenance and would empower the making of an order which had the effect of settling property on a party who had no pre-existing legal or equitable right to it and the varying of the party's pre-existing beneficial interest in settled property. However he was careful to point out that it would require "cogent considerations of justice founded on the conduct and circumstances of the parties" before orders would be made in such cases. It was, he concluded, because such powers were far-reaching that the legislation provided by s. 68 (4) that as far as practicable they should be exercised by the judge hearing the proceedings for principal relief. In that case Windeyer J. [5] dealt at some length with the considerations appropriate to be taken into account in the making of orders under s. 86 (1) and it is clear that he regarded the powers which it conferred as confined within the bounds common to other exercises of judicial power.
However, there are other considerations which reinforce that conclusion. It is well established that functions, which, if viewed independently, might be thought administrative in character, may nevertheless be committed to a court when forming incidents in the exercise of strictly judicial powers - Queen Victoria Memorial Hospital v. Thornton [1] ; Reg. v. Davison [2] . The powers conferred by s. 86 and, for that matter, by s. 84 are clearly of that nature. In Lansell v. Lansell [3] Kitto J. said that the power conferred by s. 86 (1) might only be exercised by making an ancillary order in substantive proceedings by which "principal relief" [4] as defined in s. 89 (4) was sought. His Honour characterized s. 86 as providing a form of incidental relief in proceedings for principal relief, having earlier referred to orders under that section as having an "essentially ancillary nature" [5] . All other members of the Court expressed like views.
The foregoing strongly suggests that s. 86 does not confer other than judicial power upon courts.
In Reg. v. Davison [6] , in the joint judgment of the Chief Justice and McTiernan J. it was also said that a function not necessarily of a judicial character may acquire such a character by the way in which the legislation treats it; if it be conferred upon a court or is to be exercised in the same way and by the same form of instrument as would be used by a judge it may for that reason become a bestowal of judicial powers; the other majority judgments expressed similar views [7] .
Again the fact that powers identical to those conferred by s. 84 and akin to those conferred by s. 86 have long been exercised by the Courts and treated as proper subject matter of judicial power is itself a strong reason for regarding both these sections as concerned with judicial power - Davison's Case [2] . In the Trade Practices Tribunal Case, both Kitto J. [8] and Menzies J. in his dissenting judgment [9] adverted to the significance of this historic or traditional factor in the characterization of a power. If, as Windeyer J. said in Sanders v. Sanders [10] , s. 86 and s. 84 merely provide two different means to the one end, that of effecting "a just and equitable arrangement of proprietary rights and interests, ancillary to one of the forms of principal relief", there is no substantial ground for then distinguishing between the familiar powers given by s. 84 and the new powers given by s. 86; both will fall within a traditional class of judicial power.
The foregoing considerations satisfy me that s. 86 is concerned only with judicial power and that this is unaffected by the width of the discretion thereby conferred.
The two remaining sections attacked, s. 87 (1) and s. 125, call for little comment. The former confers upon courts, in the exercise of their powers under Pt VIII, a large number of additional specified powers including the power, in par. (1) to make "any other order which it thinks it is necessary to make to do justice". If I am correct in characterizing the function of a court acting under s. 84 and s. 86 as the exercise of judicial power the conferring of additional ancillary powers by s. 87 (1) will neither alter that characterization nor will it render s. 87 (1) itself anything other than a grant of additional powers to be exercised in the course of, and for better giving effect to, the court's exercise of judicial power. As to s. 125 it does no more than authorize the making of orders for costs and security for costs "as the court thinks just" in suits which, as I have found, are concerned only with the exercise of judicial power. It follows that this grant of power to make orders as to the cost of those proceeding will have a like character.
Accordingly the attack upon each of these sections of the Matrimonial Causes Act fails; the jurisdiction with which the Supreme Courts of the States are invested by s. 23 (2), to the extent that it includes the powers conferred by those sections, is not for that reason other than an investing of judicial power and the matter should be remitted with a declaration to that effect.
It has been said on many occasions that an exclusive and comprehensive definition of judicial power cannot be formulated. There is, as Lord Simonds observed in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1] , a "borderland in which judicial and administrative functions overlap". The exercise of a power which, when entrusted to a repository other than a court, might be characterized as administrative and non-judicial, may, when entrusted in an appropriate context to a court, be held to be an exercise of judicial power. Sufficient justification for the conclusion that the power is judicial in this sense may be found "in an analogy with an admittedly judicial function, or in the fact that the power is ancillary to a judicial function, or in some such consideration" (Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1] ). In the same case Menzies J. remarked that assistance in the ascertainment of the true character of a particular power may be provided by history and by an examination of the purpose for which the power was conferred upon the body in which it has been reposed [2] .
All this is made clear by the judgments of the Court in Reg. v. Davison [3] . There the conclusion that the making of a sequestration order by the registrar on a debtor's petition was an exercise of judicial power was supported by a history according to which sequestration orders had been made in the course of a curial process, a close analogy with the making of a sequestration order by the Court on a creditor's petition (an admitted exercise of judicial power) and a consideration of the purpose for which the power was granted to the registrar.
In Lansell v. Lansell [4] , the Court unanimously held that s. 86 (1) of the Matrimonial Causes Act 1959, as amended, is a valid exercise of the power conferred by s. 51 (xxii.) of the Constitution to legislate with respect to divorce and matrimonial causes because it is a power exercisable only in a proceeding under the Act, that is, a matrimonial cause (see s. 5). The Court in its declaration went further and declared the provision to be a valid law of the Commonwealth. There is no less reason for thinking that ss. 84, 86 (2), 87 (1) and 125 are a valid exercise of the same legislative power. The argument for the respondent husband did not contend otherwise.
When attention is given to this circumstance, as well as to the scope and extent of the powers conferred by the four sections, their history and the purpose for which they were conferred, no reason appears for doubting the conclusion that their exercise by the Supreme Courts of the States, in the course of exercising the jurisdiction to hear and determine matrimonial causes, invested by s. 23 (2) of the Act, is an exercise of judicial power. The scope and extent of the particular provisions have been dealt with in the reasons for judgment prepared by Stephen J. and I agree with what is there said on that topic.
An award of maintenance in favour of a party to, or a child of, the marriage is necessarily made by reference to, and in the light of, a consideration of the relevant circumstances, including the means, earning capacity and conduct of the parties (the specific matters mentioned in s. 84). It is not an objection to the judicial character of a power that its exercise is not a mere matter of applying a formula to the facts as found, and that it involves the court in making a judgment after taking into account and evaluating a number of considerations. The making of orders under the testator's family maintenance legislation is an example of a function not essentially dissimilar which has always been regarded as judicial.
Then there is the decisive consideration that an award of maintenance has been traditionally made as the consequence of a curial process, by way of an order granting a form of relief which is ancillary to the principal relief sought in the matrimonial cause. The principal relief granted by the Court may take various forms. In general, it is a decree for dissolution of marriage. An order for maintenance is made in consequence or in contemplation of the granting of that principal relief. It forms a part of the totality of the orders made in the course of a curial procedure in which the petitioner seeks a dissolution of the marriage and a determination of the rights of the parties in consequence of that dissolution.
The same comments may be made about s. 86. Its form gives perhaps a slender foothold for the argument put forward on behalf of the respondent husband. The provision contains neither the expression of a criterion according to which relief is to be granted or denied, nor a statement of the considerations to be taken into account. However, I am unable to perceive any relevant distinction between s. 86 and s. 84 for the purposes of the question under consideration. To authorize a court to make an order where it is just and equitable to do so creates a judicial discretion exercisable after a consideration of all the circumstances relevant to the making of the order and in accordance with principle. The conferment of such an authority is not inconsistent with the exercise of judicial power (Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1] per Windeyer J.).
The judicial character of the power conferred by s. 86 is to be derived from a history according to which courts have made orders for the variation of ante -nuptial and post-nuptial settlements and have ordered property settlements and re-settlements (Lansell v. Lansell [2] ). As the power is exercisable in a matrimonial cause within the meaning of s. 5 of the Act it provides a form of relief which is ancillary to the principal relief granted in the suit.
Little need be said of s. 87 (1) which authorizes the court to make orders of various kinds, including "any other order which it thinks it is necessary to make to do justice", and s. 125 which empowers the court to make an order for costs. The powers thereby conferred are both exercisable in proceedings under the Act, the proceedings constituting an established or acknowledged exercise of judicial power. As such the powers are, apart from any other consideration, incidental to, or incidents of, the exercise of judicial power.
In the result I agree with the order proposed by Stephen J.
Cominos
Cominos