R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd

"The power and function of finally determining matters of fact and even of discretion are not solely indicative of judicial action. That is an attribute common to administrative bodies, to subordinate bodies that are adjuncts to legislation, and to judicial bodies": Federal Commissioner of Taxation v. Munro, per Isaacs J. [1] . A determination under s. 49 is not in my opinion a judicial act. It is the factum on which the operation of s. 51 depends. Proceedings under s. 47 are not, in my view, a civil or criminal suit; the document which the Commissioner files to commence proceedings is not a pleading seeking the protection or enforcement of a right nor claiming judicial relief. I think that s. 49 is not an attempt by the Parliament to exert the power conferred by s. 77 (i.) of the Constitution to define the jurisdiction of the Trade Practices Tribunal (as if it were a "federal court"), in a "matter" arising under the Trade Practices Act. In the joint judgment in the case In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 [1] , the following statement is made: we do not think that the word "matter" in s. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. The judgment continues: "The word "matter" is used several times in Ch. III of the Constitution (ss. 73, 74, 75, 76, 77), and always, we think, with the same meaning." After referring to opinions expressed in South Australia v. Victoria [2] , their Honours said, in the joint judgment mentioned above [3] : All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. None of the provisions of the Trade Practices Act 1965-1968 assigns jurisdiction to the Tribunal in any "matter" within the meaning of Ch. III arising under the Act. The dominant statutory functions of the Tribunal are appropriate exclusively to administrative action. They pertain to trade and commerce. "Courts do not execute or maintain laws relating to trade and commerce": New South Wales v. The Commonwealth, per Isaacs J. [4] . 1. (1926) 38 C.L.R. 153, at p. 176. 2. (1921) 29 C.L.R. 257, at p. 265. 3. (1911) 12 C.L.R. 667. 4. (1921) 29 C.L.R., at p. 266. 5. (1915) 20 C.L.R. 54, at p. 93.

Part II of the Trade Practices Act 1965-1968 Cth establishes a tribunal which it designates the Trade Practices Tribunal. The Tribunal is constituted in a manner which does not comply with the requirements of s. 72 of the Constitution for the creation of a federal court. By s. 71 of the Constitution the judicial power of the Commonwealth is vested exclusively in the High Court, such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. Since the Tribunal answers none of these descriptions it is not a competent repository of any part of the judicial power of the Commonwealth.

Part VI of the Trade Practices Act contains provisions purporting to confer upon the Tribunal authority to entertain certain proceedings instituted by an official styled the Commissioner of Trade Practices. Section 54 provides that the Tribunal in such proceedings may make interim orders where there is a likelihood of grave hardship to a person or irremediable injury to the public interest, and s. 49 provides for its making such inquiry as it considers appropriate having regard to the matters alleged by the Commissioner. The latter section then provides that if the Tribunal is satisfied that an agreement of a certain description, called in the Act an examinable agreement, exists or has existed, or that a practice of a certain description, called in the Act an examinable practice, has been, or is being, or is proposed to be, engaged in, it shall make a determination by which it (a) records its findings as to those matters, including its findings as to the parties to, and terms of, the agreement, or the particulars of the examinable practice, and (b) determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate (i.e. under the examinable agreement) are contrary to the public interest or, as the case may require, the examinable practice is contrary to the public interest.

The question is whether the powers which Pt VI thus purports to confer are within the concept of the judicial power of the Commonwealth. Questions of this general description are often difficult to decide, for it has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a "borderland in which judicial and administrative functions overlap" (Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1] ), so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court. The judgments in Reg. v. Davison [2] provide illustrations of this.

1. [1949] A.C. 134, at p. 148. 2. (1954) 90 C.L.R. 353.

But I do not think that any such difficulty confronts us here. There are no traditional concepts to be applied as there were in Reg. v. Davison, and two considerations, one negative and the other positive, appear to me when taken together to require the conclusion that the powers entrusted to the Tribunal are essentially non-judicial. The powers must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers. Close examination of the relevant provisions of the Act shows, I think, that on the one hand no exercise of any of the Tribunal's powers is an adjudication (in the proper sense of the word), and that on the other hand the result achieved by an exercise of any of the powers is a result foreign to the nature of judicial power.

In Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1] , Lord Simonds for the Privy Council said:

It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject. This is not to say that some powers may not be held to be judicial though no adjudication in a lis inter partes is involved, for there may be sufficient justification for such a conclusion 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: see Reg. v. Davison [2] . But in general the notion is there, even if in the background, of arbitrament upon a question as to whether a right or obligation in law exists. Griffith C.J. fastened upon it in the passage in his judgment in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [3] which the Privy Council has repeatedly approved, not as a comprehensive definition but as a statement of the broad features of judicial power: see Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1] . It will be remembered that to him the central idea was "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property". See also the statements of Palles C.B. and Holmes J. cited in Reg. v. Davison [4] . Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified. 1. [1949] A.C., at p. 149. 2. (1954) 90 C.L.R., at p. 368. 3. (1908) 8 C.L.R. 330, at p. 357. 4. [1949] A.C., at p. 149. 5. (1954) 90 C.L.R., at pp. 367, 370.

The powers of the Tribunal do not present any such feature, and they are not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations. The Commissioner alone is authorized to institute proceedings before the Tribunal. He is of course a party to the proceedings (see e.g. s. 71), but he does not come before the Tribunal asserting a right to relief in either a personal or a representative capacity. He makes allegations of fact relevant to the questions the Tribunal is required by the Act to consider, and the Tribunal, if it is satisfied that the agreement or practice is examinable, has then to form and give expression to its own opinion as to whether the relevant restriction or practice is "contrary to the public interest". Even where the Commissioner makes submissions on these questions in order to assist the Tribunal, he is not seeking the vindication of any right or obligation. In particular, if he submits that a particular restriction or practice is or is not contrary to the public interest he is not thereby contending that a decision should be made for or against the existence of any right or obligation so as to be binding as between the parties to the restriction or practice, or as between them and either the Crown or the public. The inquiry is not into the validity of the agreement or the legality of the practice, as s. 51 shows most clearly. Even in relation to an agreement, the question is not whether it is contrary to public policy in the sense in which the term is used in the common law: cf. In re Chemists' Federation Agreement [No. 2] [1] . The determination does not resolve any question as between opposed interests. It merely records whether the Tribunal has satisfied itself, first, that an agreement or practice has the characteristics which the Act comprehends in the word "examinable", and, secondly, that the restriction or practice, if examinable, is contrary to the public interest. Such determinations as these have quite often to be made in the exercise of administrative power. The fact that an official is given a power conditionally upon being satisfied of a particular state of facts - and so is authorized to determine unexaminably "the jurisdictional fact" upon which his power depends (if the expression be thought appropriate) - is no indication that in deciding whether he is so satisfied he is exercising judicial power. In the well-known judgment of Palles C.B. in R. v. Local Government Board for Ireland [2] there is a passage which has been repeatedly cited in this Court and has been relied upon in the present case as tending against this view. The learned Chief Baron observed that if the existence of a ministerial power depends upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind, for as his Lordship went on to say:

The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorizing it is judicial. [1] The reference is to a power which depends upon the happening of a contingency. We are here concerned with a power which depends upon nothing but the Tribunal's own satisfaction that certain conditions exist. The determination of the Tribunal that it is so satisfied - the making of its "findings" (as s. 49 calls them) - does not bind in the sense in which Palles C.B. used the expression; that is to say, it does not conclude for all purposes any question as to which the Tribunal declares itself satisfied. It answers only the question whether the Tribunal is in fact so satisfied - and does not answer even that question conclusively, for if the Tribunal were to record that it was so satisfied when in fact it was not, the next step, which the Tribunal is authorized to take only if it is so satisfied, could be set aside by this Court in exercise of the jurisdictions which s. 102 (2) acknowledges. 1. [1958] 1 W.L.R. 1192, at p. 1212. 2. [1902] 2 I.R. 349. 3. [1902] 2 I.R., at p. 374.

A determination that an agreement or a practice is examinable therefore has, in my opinion, no point of contact with the concept of judicial action unless it derives it from the nature of the power to which it is preliminary. But the power which the Tribunal may exercise if satisfied on the preliminary point is to determine, "in accordance with its opinion", a question that is essentially non-justiciable. I so describe it for the reason that it does not depend upon the application of any ascertainable criterion. The Act requires the Tribunal in considering the question of the public interest to make a basic assumption and to take certain matters into consideration (s. 50), but the question upon which it has to pronounce is not as to whether the relevant restriction or practice satisfies an ascertained standard but as to whether it satisfies a description the content of which has no fixity - a description which refers the Tribunal ultimately to its own idiosyncratic conceptions and modes of thought. In words which I take from the joint judgment in Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia [1] , it may be said here that there is no "claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion provided by the legislature". The judgment proceeded:

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] Similarly, 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. When the Tribunal, in conformity with s. 49 (1) (b), "determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest" it necessarily supplies for itself its own subjective criterion for deciding, as a matter of individual opinion, though on the assumption required by s. 50 (1) and taking into account all the matters specified in the Act, where the public interest appears to it to lie in the circumstances in which the restrictions or practice operate. Thus the work of the Tribunal is work which would be appropriate for the legislature itself to do if it had the time to consider individual cases. It would be obviously impracticable for the Parliament to apply its own ideas as to what is contrary to the public interest, either by passing a special Act for every individual case or by laying down a definition which in every case would be sure to produce a result satisfactory to it. There is probably no practicable alternative to setting up an authority which with some but incomplete guidance from the legislature will apply its own notions concerning the public interest. This course the Trade Practices Act adopts, contenting itself with prescribing the qualifications for membership of the Tribunal, giving a limited measure of guidance, and then relying upon the Executive's choice of members to ensure, so far as assurance is possible, that the notions applied will be such as the Parliament would approve. 1. (1957) 100 C.L.R. 312, at p. 317. 2. (1957) 100 C.L.R. 312, at p. 317.

None of the powers of the Tribunal, then, involves any adjudication upon a claim of right. This negative consideration, however, does not stand by itself. The effect given by the Act to a determination under s. 49 that a restriction or practice is contrary to the public interest is to render unenforceable for the future an agreement under which the restriction is accepted or the practice is provided for (s. 51), and to enable the Tribunal to make such orders as it thinks proper for restraining future conduct which falls within certain descriptions (s. 52). The determination itself has no operative effect: it constitutes the factum by reference to which the Act operates to alter the law in relation to the particular case. And an order under s. 52 (or an interim restraining order under s. 54) is in like case. It presents a direct contrast with an injunction granted by a court as a means of enforcing obligations that have been established by adjudication. The order restrains future conduct, not as being in breach of ascertained obligations, but as being in conformity with ascertained obligations or practices - not in order to ensure observance of them but to prevent observance of them, because it is considered that their observance would be against the public interest. The Act, particularly s. 52 (7), operates upon the order to give its provisions the force of law, and thus to alter the law for the future in relation to the particular case.

For these reasons the powers of the Tribunal seem to me to be of a nature foreign to the concept of judicial power. If analogy be sought it may be found in a regulation made under the authority of a statute, for a determination under s. 49 and an order under s. 52 or s. 54 are in aid of the law-making process.

In my opinion the attack upon the validity of the provisions conferring powers upon the Tribunal fails and the order nisi should be discharged.

Since 1918, when Alexander's Case [Waterside Workers' Federation of Australia v. J. W. Alexander Ltd.] [1] , was decided, it has been established that it is contrary to the Constitution for Parliament to seek to establish a tribunal otherwise than as a federal court constituted under Ch. III of the Constitution and to attempt to confer upon that tribunal part of the judicial power of the Commonwealth. Such an unconstitutional grant of judicial power may be inseparable from the establishment of the Tribunal, so that the Tribunal itself falls. Where, however, the unconstitutional grant is separable from its establishment, the Tribunal stands, but without judicial power.

The Trade Practices Act 1965-1968 Cth, establishes the Trade Practices Tribunal otherwise than as a federal court constituted under Ch. III, and the case for the prosecutor is that certain sections of the Act unavailingly attempt to confer upon the Tribunal part of the judicial power of the Commonwealth. It is the validity of these sections that are here in question.

The sections are 49 to 84 and 102. By these sections the Tribunal is authorized to make and review certain determinations and orders, ss. 49-66; provision is made for the enforcement of orders made by the Tribunal, ss. 67-69; the proceedings of the Tribunal are regulated and protected, ss. 70-84; and the validity of a determination or order of the Tribunal is protected from challenge, save by prerogative writ or injunction in this Court, s. 102.

The Act provides for a Commissioner of Trade Practices and that officer is authorized by s. 47 to institute proceedings in the Tribunal in respect of (1) restrictions contrary to the public interest accepted by an examinable agreement, and (2) examinable practices contrary to the public interest; where the Commissioner has reason to believe that there was, or is, an examinable agreement or that there is, or will be, an examinable practice, and he is of opinion, that the restriction or practice, as the case may be, is contrary to the public interest.

Upon the institution of such proceedings by the Commissioner, the Tribunal is to act as is provided in s. 49. Section 49 (1) and (2) are as follows:

49 (1). In proceedings under section 47 of this Act, the Tribunal, after such inquiry as it considers appropriate having regard to the matters alleged by the Commissioner, if it is satisfied that an examinable agreement exists or has existed, or an examinable practice has been, is being or is proposed to be, engaged in, shall make a determination by which it -

(a) records its findings as to those matters, including its findings as to the parties to, and terms of, the agreement, or the particulars of the examinable practice; and

(b) determines, in accordance with its opinion, whether the relevant restrictions to which the proceedings relate are contrary to the public interest or, as the case may require, whether the examinable practice is contrary to the public interest.

(2) Where the Tribunal makes a determination under this section, it shall state, and record in the records of the Tribunal, the reasons for its opinion that the restriction or practice is, or is not, contrary to the public interest.

In considering whether any restriction or practice is contrary to the public interest s. 50 (1) requires the Tribunal to take as the basis of its consideration: the principle that the preservation and encouragement of competition are desirable in the public interest, but shall weigh against the detriment constituted by any proved restriction of, or tendency to restrict, competition any effect of the restriction or practice as regards any of the matters referred to in the next succeeding sub-section if that effect tends to establish that, on balance, the restriction or the practice is not contrary to the public interest. The next succeeding subsection sets out matters (a) to (f) as follows:

(a) the needs and interests of consumers, employees, producers, distributors, importers, exporters, proprietors and investors;

(d) the need to achieve the full and efficient use and distribution of labour, capital, materials, industrial capacity, industrial know-how and other resources;

(e) the need to achieve the production, provision, treatment and distribution, by efficient and economical means, of goods and services of such quality, quantity and price as will best meet the requirements of domestic and overseas markets; and

(f) the ability of Australian producers and exporters to compete in overseas markets.

In considering the public interest in relation to a practice of monopolization, the Tribunal shall weigh against any detriment (including detriment constituted by any proved restriction of, or tendency to restrict, competition) that has resulted, or can be expected to result, from the practice any effect of the practice as regards any of the matters referred to in paragraphs (a) to (f) of the last preceding sub-section if that effect tends to establish that, on balance, the practice is not contrary to the public interest.

The effect of the determination that a restriction accepted, or a practice provided for, by an examinable agreement is contrary to the public interest is that the agreement - if in force - becomes unenforceable as regards observance of the restriction or engaging in the practice on and after the date of the determination, s. 51 (1) and (2).

Where the Tribunal determines that a restriction or practice is contrary to the public interest, a transaction entered into, whether before or after the making of the determination, in pursuance of the restriction or in accordance with the practice is not illegal or unenforceable by reason only of the making of that determination.

Section 52 (1) and (4) authorizes the Tribunal, upon making a determination that a restriction accepted under, or a practice provided for, by an examinable agreement is contrary to the public interest, to make orders restraining the parties thereto from giving effect to, or enforcing, the agreement in respect of the restriction or practice, or entering into another agreement whereby a like restriction or practice is accepted or provided for.

Where the Tribunal determines that a practice is contrary to the public interest, it may make such orders as it thinks proper for restraining the person concerned, or the combination concerned or any of its members -

(a) from engaging or further engaging in the practice;

(c) from doing acts or things that, in the opinion of the Tribunal, would, unless there were a change in circumstances, amount to, or contribute to, a continuance or repetition of the practice or engagement in a practice of a like kind.

Provision is also made in s. 52 for ancillary orders. Section 52 (7) provides: Subject to section 57 of this Act, orders of the Tribunal have the force of law.

Section 57, in substance, confines the operation of an order to parties to proceedings on whom the order is expressly binding.

The making of interim restricting orders is authorized by s. 54, the subject of the restrictions therein set out.

The Tribunal is authorized to refer a question of law arising in proceedings to the Commonwealth Industrial Court which is authorized to hear and determine any such question, s. 66.

By ss. 62-65 provision is made for the review of determinations made by the Tribunal by a Review Division of the Tribunal which may direct reconsideration. Thereupon the Tribunal may confirm, vary or reserve its previous determination.

The provisions relating to the enforcement of orders of the Tribunal are to be found in Pt VII. They are, in substance, that disobedience to an order of the Tribunal is contempt of the Tribunal and is punishable by the Commonwealth Industrial Court as if it were a contempt of that Court.

The only other sections to which specific reference is necessary are ss. 98 and 102 which are as follows:

39. In proceedings under Part VII. or Part X., a determination or order of the Tribunal out of which the proceedings arose is evidence of the facts stated in the determination or order to have been found by the Tribunal.

(1) Subject to this section, the validity of a determination or order of the Tribunal shall not be challenged, reviewed or called in question in any proceedings, including proceedings under Part VII. or Part X.

(2) The last preceding sub-section does not limit the exercise of any jurisdiction of the High Court to issue a writ of prohibition, mandamus or certiorari or an injunction.

There are one or two matters arising out of this review of the provisions of the Act which deserve emphasis. The first is that the Tribunal makes determinations and orders. To determinations the statute itself attaches consequences for the future. Thus, for instance, restrictions accepted under agreements become unenforceable, s. 51 (1) and (2). The making of a determination is also made the condition of further action by the Tribunal. Thus restraining orders may be made under s. 52 which are given the force of law. Nevertheless, the Tribunal cannot enforce its orders. It is the Industrial Court that has that authority under Pt VII.

(1) Does the making of a determination which has statutory consequences and provides the basis for further action by the Tribunal, involve an exercise of judicial power?

(2) is the making of a restraining order having the force of law the exercise of judicial power?

By a determination the Tribunal (1) records its findings that "an examinable agreement exists or has existed, or an examinable practice has been, is being, or is proposed to be, engaged in" including "its findings as to the parties to, and the terms of, the agreement, or the particulars of the examinable practice"; and (2) determines, with reasons, whether the restriction or practice, as the case may be, is contrary to the public interest. These findings are unchallengeable except in this Court, s. 102; and this Court cannot be concerned merely with the question whether the Tribunal was right or wrong. The fact that a prerogative writ may go, is, for present purposes, insignificant. It is part of the constitutional powers of this Court to issue prerogative writs to officers of the Commonwealth, whether or not such officers are exercising judicial or administrative powers. The Act merely recognizes this power and its existence affords no indication whatever of the type of power being exercised by the officer to whom writs may go. If, therefore, a determination is followed by a restraining order and such an order is followed by proceedings in the Industrial Court for its enforcement, the Industrial Court cannot investigate the correctness of the determination made by the Tribunal which provides the basis for all that follows. The Court must accept that determination, including that part of the determination that there is an examinable agreement or practice. Similarly, if civil proceedings are taken under Pt X the determination, upon which the order supporting such proceedings is based, is altogether beyond challenge. Moreover, the determination does more than provide a basis for an order which may lead to further proceedings. By virtue of the statute the determination renders unenforceable what theretofore had been enforceable. A determination, therefore, results in the destruction of existing agreements in part, but does so only for the future.

There is no doubt that a determination does operate to the legal detriment of persons party to the agreement or practice that is found to be examinable and contrary to the public interest, but that, although sufficient to require that, in making its determination, the Tribunal should act judicially, is not in itself enough to compel the conclusion that the power to make a determination is judicial power.

The Act defines examinable agreements, s. 35, and examinable practices, s. 36, and by s. 38 directs the Tribunal to disregard certain matters in determining whether an agreement is an examinable agreement. An examinable agreement has that characteristic upon its making or variation, or, if made before the date of the commencement of the Act, at the expiration of thirty days from the commencement of the Act, s. 35. It is the Act, not the decision of the Tribunal, that makes an agreement or practice examinable. The determination is a decision, or a record of a decision, made in the course of the proceeding that the agreement or practice is to the satisfaction of the Tribunal of the kind specified in the Act, i.e. examinable. If such a decision is coupled with a further decision that, in the opinion of the Tribunal, the agreement or practice is contrary to public policy, a determination, in the case of an agreement, has immediate consequences, i.e. part of it becomes unenforceable. The making of a determination is also the basis of further action by the Tribunal. The point to which I am addressing myself can best be developed in relation to agreements rather than practices, although in each case the principle is the same. That part of a determination which records the finding that an agreement is an examinable agreement as defined in the Act, and the finding which is so recorded, may be different in character from that part of the determination recording that, in the opinion of the Tribunal, the agreement is contrary to the public interest. The former finding seems to me to require the application of judicial standards; the latter may, perhaps, require no more than the application of an administrative discretion for which guide-lines are provided by s. 50. An agreement is contrary to the public interest only when the Tribunal determines that, in its opinion, it is; an agreement or practice is examinable because it falls within the terms of s. 35 and of s. 36 as the case may be. In determining whether or not it is specified that an agreement is an examinable agreement the Tribunal must construe the Act, make findings of fact about the agreement and apply the Act, as it construes it, to the agreement, as it finds it. The findings of the Tribunal leading to its satisfaction that there is, or has been, an examinable agreement, together form part of its "determination". In face of the language of s. 49 (1) (a) and (b) I cannot accept the contention of the Solicitor-General that the Tribunal's finding that there is, to its satisfaction, an examinable agreement, is not part of its determination under the section, for by the determination the Tribunal records such a finding. However, even if the decision of the Tribunal that it is satisfied that an examinable agreement exists, or has existed, precedes the making of the determination, the decision is part of the adjudication of the Tribunal and its character is the same whether or not it is part of the determination. Section 49 confers power to make a determination based upon and recording findings that a particular agreement or practice is of a particular character, i.e. examinable under the Act, and this by virtue of the definitions to be found in the Act. Such findings by a court would be, clearly enough, judicial. Are they of a different character because they are made by a non-judicial tribunal in the course of proceedings which do not stop with what, by itself, would seem to be a judicial determination?

In considering this problem an example may be useful in showing the course which the Tribunal may take in reaching a determination. "Related companies" are defined by reference to the Companies Ordinance 1962 A.C.T.. Whether companies are related is a question of law. Agreements between related companies, without other parties, are excluded from s. 35 (1) of the Act by reason of s. 35 (3). Let it be supposed that in proceedings under s. 47 the question arises whether the agreement is excluded from s. 35 (1) by s. 35 (3). The Tribunal decides to determine this question itself and, in accordance with the opinion of the Presidential Member presiding, decides that the companies are not related companies, and the agreement, having the other characteristics that satisfy the Tribunal that the agreement is an examinable agreement as defined by the Act, so decides. Reaching this decision involves the construction of the Companies Ordinance 1962 and the Trade Practices Act, the finding of facts in relation to the companies in question, the application of the ordinance to the companies party to the agreement, and the application of the Act to the agreement. If this were to be done by a court it would be the exercise of judicial power. The matter, moreover, does not stop here. The determination embodying the finding that there is an examinable agreement is made unchallengeable and if eventually the parties are proceeded against in the Industrial Court for contempt of an order made by the Tribunal on the basis of its determination, the Industrial Court cannot investigate the question whether the Tribunal's decision upon the question of law raised before it was right or wrong. The Court must accept that decision and can only decide for itself whether or not there has been a contravention of an order which could not have been made without the Tribunal's determination that the agreement was an examinable agreement. In other words, a question of law, upon which all subsequent proceedings depended, has been finally decided by the Tribunal in proceedings between parties instituted before it. What is it then that takes the making of the determination of the Tribunal, or its decision that it is satisfied that there is an examinable agreement, outside the exercise of judicial power?

Two contentions have to be noticed. The first, that so much of the determination constituted by findings that an agreement is, to the satisfaction of the Tribunal, an examinable agreement, of itself and without more, has, so it is argued, no legal consequences. Legal effect is given by the Act to the whole of the determination, viz. that there is an examinable agreement and that a restriction accepted thereby is contrary to the public interest, but the finding that there is an examinable agreement is but prefatory to the determination. Secondly, that the effect of the determination, in rendering unenforceable part of an agreement, operates only from the making of the determination. Its effect is prospective in that a determination is a circumstance that brings into operation a legislative frustration in futuro of part of the agreement. Are these things so, and, if so, is the consequence, that the making of a determination is not the exercise of judicial power?

Before considering the problem raised by the foregoing contentions, I think it desirable at this point to dispose of an argument which would, perhaps, make the examination which I propose unnecessary. It was argued that the power of the Tribunal is similar to that of the Commonwealth Conciliation and Arbitration Commission, which, it is established, is non-judicial. It seems to me that there is a real distinction between the power of the Tribunal and that of the Conciliation and Arbitration Commission. The Commission has no power to determine finally jurisdictional facts. Unless there is a dispute of a particular character the Commission has no arbitral or conciliatory power whatever and any determination that it may make, that such a dispute exists, is not conclusive of its jurisdiction. On the other hand, the statement already made indicates that the jurisdiction of the Tribunal to make a determination and an order thereon depends upon its own unchallengeable finding that, to its satisfaction, there is an examinable agreement, i.e. upon its own decision of a question of law going to its own jurisdiction. The power of the Tribunal to make a determination depends, not upon whether there is, in law, an examinable agreement, but upon the Tribunal's own satisfaction, right or wrong, that an examinable agreement exists or has existed, s. 49 (1). The capacity so to decide is indicative of judicial power. R. v. Local Government Board for Ireland [1] , per Palles C.B., adopted by Isaacs J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [2] , by Latham C.J. in Rola Co. (Aust.) Pty. Ltd. v. The Commonwealth [3] , and by Dixon C.J. and McTiernan J. in Reg. v. Davison [4] .

1. [1902] 2 I.R., at p. 373. 2. (1909) 8 C.L.R., at pp. 383 and 384. 3. (1944) 69 C.L.R. 185, at p. 199. 4. (1954) 90 C.L.R., at p. 367.

Turning back to the contentions already stated, I am not prepared to accept the first as accurately describing the effect of the Act. So much of the determination as consists in the finding, to the satisfaction of the Tribunal, of the existence of an examinable agreement, although by itself it does not affect enforceability of the agreement, is the determination of a jurisdictional fact which provides the basis for further action by the Tribunal. The determination, by a court of limited jurisdiction, that it has jurisdiction, is a determination of the same order and, when made by a court, is, of course, clearly judicial and it would matter not whether the determination to be made is expressed to be of the jurisdictional fact itself or of the court's satisfaction that the jurisdictional fact exists.

The second contention may be more substantial, because the making of a determination is not a decision upon existing rights and obligations, notwithstanding that it does involve a statutory consequence for the future and it does provide the basis for further action by the Tribunal.

The determination and enforcement of existing rights or liabilities of parties is, of course, the simplest form of the exercise of judicial power. To go further, however, as the Solicitor-General contended, and to make such a determination and its enforcement the test of whether or not the judicial power is involved would, in my opinion, be to limit too restrictively the nature of judicial power. See Reg. v. Davison [1] , per Dixon C.J. and McTiernan J. Where the question is whether a power is judicial or not history may, in some cases, help to provide a solution. See Reg. v. Davison [2] . In others the purpose for which a particular power has been conferred upon a particular body may help to determine its character. In this case history provides no assistance. The Solicitor-General did, however, urge that Parliament clearly enough intended the Tribunal to be something other than a judicial tribunal and that, therefore, no intermediate step on the way to a final administrative determination should be regarded as judicial in character. This is a circumstance to which some weight must be given but it remains true that a non-judicial tribunal cannot be given power to make decisions that are judicial on the way to a final administrative determination. Here, in proceedings in the Tribunal between parties in which allegations are made by the Commissioner, including necessarily the examinability of an agreement or a practice alleged against the other parties, the Tribunal is required, as the first step in the proceeding and in accordance with criteria laid down in the Act, to reach a conclusion whether it is satisfied "that an examinable agreement exists or has existed, or an examinable practice has been, is being, or is proposed to be engaged in" by the parties against whom the allegation is made. If the Tribunal is not so satisfied, that would be the end of the proceedings. If the Tribunal is so satisfied, it goes on to determine, in accordance with its opinion, the question of public interest referred to in s. 49 (1) (b).

1. (1954) 90 C.L.R., at pp. 367-370. 2. (1954) 90 C.L.R., at pp. 369-370.

I have come to the conclusion that, in finding to its satisfaction the matters referred to in the opening words of s. 49 (1) and by the determination which it makes recording that finding, s. 49 (1) (a), or by refraining from making such findings and so putting an end to the proceedings before it, the Tribunal would be exercising judicial power. In short, the legislature has, as it seems to me, prescribed a judicial process as an essential part of the proceedings before the Tribunal. That part of its decision which relates to examinable agreements or practices is not merely a determination by the Tribunal, in the exercise of its discretion, that an agreement or practice should be examined; it is rather a decision that it is satisfied that an agreement or practice is what the Act defines as an examinable agreement or practice; that decision has, as I have shown, legal consequences. In my opinion, in discharging its task pursuant to s. 49 of the Act, the Tribunal would be exercising judicial power.

Although the decision which I have just expressed concludes the matter in favour of the prosecutor, I should, perhaps, say that, had I decided otherwise, I would not have been satisfied that the making of a restraining order under s. 52 or s. 54 of the Act would be the exercise of judicial power. An order made under one or other of those sections is not an order based upon an ascertainment of facts and law in accordance with the Act; rather it is an order preventing the exercise or enforcement of existing rights, or, against entering into new agreements or practices of a like character. I think such an order would lack the quality of a judicial order. Its making constitutes part of a legislative scheme for destroying existing rights and for preventing the creation in the future of rights of a like character. To me the decisive consideration about such an order is not that the Tribunal cannot itself enforce it - that is not decisive - it is rather that an order is part of a procedure, not being in itself essentially judicial, for changing existing rights and obligations. However, as I regard s. 49 as invalidly attempting to confer judicial power to make a determination, there can be no determination and therefore no order thereon.

This case is a challenge to the validity of the Trade Practices Act 1965-1968 of the Commonwealth Parliament. The attack is mounted on a narrow front and concentrated upon one objective, the Trade Practices Tribunal set up by Pt II (ss. 9-22) of the Act.

The judicial power of the Commonwealth is vested in courts: and the judges of courts created by the Commonwealth Parliament must hold office during good behaviour. It is now firmly established that this means that members of federal courts exercising the judicial power are to be appointed for life. The Restrictive Practices Tribunal does not meet this requirement. Section II of the Act provides that "a member holds office for such period not exceeding seven years as is specified in the instrument of his appointment". Therefore, if the Tribunal is to exercise the judicial power of the Commonwealth, it is not validly set up. Levering on this as the point d'appui the prosecutor sought to loosen the whole scheme and bring the statute down. No other ground of invalidity is asserted in these proceedings. The point of attack is limited in this way because the events from which the case arises occurred in Tasmania: and the Parliament of that State has, by Act No. 62 of 1966, referred to the Parliament of the Commonwealth power to deal with certain matters which may be compendiously called restrictive trade practices. There is therefore in this case no room for any question of the power of the Commonwealth Parliament to make a law to operate in Tasmania with respect to restrictive practices. The critical question is thus whether the Act purports to vest in the Tribunal the judicial power of the Commonwealth within the meaning of that term in s. 71.

One must not, I think, start by asking what is a judicial function, but what is meant by "the judicial power of the Commonwealth". The words bring at once to mind the political doctrine of the separation of powers. The place this has in our Constitution, or rather its place behind the words of the Constitution, has been the happy hunting ground of learned commentators. I do not propose to follow them far. I mention, because I have found it helpful, the succint discussion, with references to other works, by Professors Friedmann and Benjafield in their book, Australian Administrative Law, 2nd ed. (1962), Ch. III. The pure or strict concept of the separation of powers assumes that the functions of government may be divided between three distinct branches or departments. It then insists that these should be performed by separate organs - the legislature, the executive and the judicature. Each organ should keep to its proper field and not encroach upon other fields. To secure this the same persons must not at any one time compose, or exercise the functions of, more than one organ of government - that is to say a separation of personnel is necessary for an effective separation of powers. This last requisite cannot exist in relation to the executive and the legislature where, as in Australia, the British system of responsible government prevails; for ministers of the Crown not only may be, but must be, members of Parliament. The doctrine of the separation of powers, in its original form, has no place in our constitutional law. In the joint judgment of Dixon C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case [Reg. v. Kirby; Ex parte Boilermakers' Society of Australia] [1] , their Honours said:

Probably the most striking achievement of the framers of the Australian instrument of government was the successful combination of the British system of parliamentary government containing an executive responsible to the legislature with American federalism: and they went on: 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. But that does not mean that the separation of powers has no place in our system. Indeed it is well-recognized dogma for us that the judicial power is to be exercised separately from the exercise of the other two powers, and by different people. This is a necessity of our written constitutional law as well as a compelling part of our inheritance of the British tradition of the independence of the judges. 1. (1956) 94 C.L.R. 254, at p. 275.

Today political philosophers often prefer the term "functions" of government to "powers", when discussing the doctrine of the separation of powers, which is, of course, the classic phrase. The word "powers" can no doubt be misleading. So can the word "functions". The phrase "the judicial power of the Commonwealth" predicates not merely a capacity for adjudication, but the authoritative character, the binding consequences and the indirectly coercive effect of adjudication by a court. It began, I assume, as a translation into English of Montesquieu's doctrine as expressed in L'Esprit des Lois. In Ch. vi of Book xi, he spoke of "pouvoirs" and also of "puissance". The sentence which is ordinarily translated "Again there is no liberty if the judicial power is not separated from the legislative and executive power" is originally "Il n'y a point encore de liberté si la puissance de juger n'est pas separée de la puissance legislative et de l'exécutrice". "Puissance" or "pouvoirs", the judicial power of the Commonwealth, is the judicial function of the Commonwealth as an attribute of sovereignty, exercisable by the organs to which it is constitutionally committed. Every Commonwealth official who, in the course of administrative duties, has to decide some incidental question does not thereby exercise the judicial power of the Commonwealth. I shall return to this later. I want first to look at some matters which are the background of s. 71.

Lord Simonds, delivering the judgment of their Lordships in the Privy Council in the Boilermakers' Case [Attorney-General (Aust.) v. The Queen and the Boilermakers' Society of Australia], [1] said:

That the Constitution is based upon a separation of the functions of government is clearly to be seen in its structure, which closely follows the model of the American Constitution. Later he said [2] : But enough has been said to suggest that in the absence of any contrary provision the principle of the separation of powers is embodied in the Constitution. Section 1, which vests legislative power in a federal parliament, at the same time negatives such power being vested in any other body. In the same way s. 71 and the succeeding sections, while affirmatively prescribing in what courts the judicial power of the Commonwealth may be vested and the limits of their jurisdiction, negatives the possibility of vesting such power in other courts or extending their jurisdiction beyond those limits. It is to Ch. III alone that the parliament must have recourse if it wishes to legislate in regard to the judicial power. That chapter is in its terms detailed and exhaustive, and their Lordships dissent from the contention sometimes explicitly, sometimes implicitly, advanced that, inasmuch as there is no express prohibition of other legislation in this field, it is open to the parliament to turn from Ch. III to some other source of power. Later again he said [3] : In the first place it has been a matter of somewhat theoretical controversy how far the Constitution embodies the doctrine of separation of powers. It is a doctrine, said Williams J., which should be applied "with great circumspection". Their Lordships do not dissent, but must bear in mind how often it has been stated in the High Court that the Constitution is based upon a separation of the functions of government. One among many examples may be found in New South Wales v. The Commonwealth (the Wheat Case) [4] . But, first and last, the question is one of construction and they doubt whether, had Locke and Montesquieu never lived nor the Constitution of the United States ever been framed, a different interpretation of the Constitution of the Commonwealth could validly have been reached. 1. [1957] A.C. 288, at p. 311; (1957) 95 C.L.R. 529, at p. 537. 2. [1957] A.C., at pp. 312, 313; (1957) 95 C.L.R., at pp. 537, 538. 3. [1957] A.C., at p. 314; (1957) 95 C.L.R., at pp. 539, 540. 4. (1915) 20 C.L.R. 54, at p. 88.

The last sentence is a reminder that our task is one of construing the Constitution as it stands. Yet I find it impossible to do this on the assumption that Montesquieu had never lived - I say nothing as to Locke - or that those who framed our Constitution did not copy s. 71 from s. 1 of Art. III of the Constitution of the United States. We know that they did. In Reg. v. Davison [1] , Kitto J. said:

It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed. With that I entirely agree. The important fact is that the phrase "the judicial power of the Commonwealth" in s. 71 of the Constitution is derived from America, where it got its meaning from Montesquieu's political dogma. Whether or not Montesquieu had originated that dogma, it was from his writing that it became esteemed as a guarantee of civil liberty. He based it upon a view of English institutions of the eighteenth century, and related it to the idea of checks and balances as factors in the preservation of civil liberty. How far his conclusion was justly based on English institutions of his day has been questioned. Holmes J. called it "a fiction invented by him, a fiction which misled Blackstone and De Lolme". The validity of this need not trouble us; but I cannot forbear from quoting Pollock's comment in a letter to Holmes: "It is true that the English Constitution does not lend itself to formulas. But as formulas go I don't think Montesquieu was far out in the middle of the 18th century": Holmes-Pollock Letters, vol. 2, p. 265. And see Holdsworth, History of English Law, vol. 10, pp. 713-724, noting in particular the statement (at p. 721): This division of powers, which checked and balanced one another, did make tyranny impossible. The main faults of Montesquieu's theory were that it exaggerated the sharpness of the separation; and that it failed to bring out the fact that it was the autonomy in the action and in the development of these divided, though not quite separated powers, which, by enabling them to check and balance one another, was the guarantee of liberty. 1. (1954) 90 C.L.R., at pp. 380-381.

The importance and influence of the theory at the time when the Constitution of the United States was under consideration, before its final adoption, is manifest in The Federalist, Number 47, which was written by Madison. Story, writing in 1833 when he was Dane Professor of Law at Harvard, said in the chapter on the Judiciary in his Commentaries on the Constitution that:

No remark is better founded in human experience than that of Montesquieu that "there is no liberty if the judiciary power be not separated from the legislative and executive powers". Montesquieu's theory is an important chapter in constitutional history and political philosophy; but for present purposes its past is irrelevant, for it is now embodied in the written words of the Australian Constitution. To these I turn, mentioning in passing two recent books that I have found helpful in putting the theory of the separation of powers in its proper place in constitutional law today. They are: W. B. Gwyn, The Meaning of the Separation of Powers, an analysis of the doctrine from its origin to the adoption of the United States Constitution (1965); M. J. C. Vile, Constitutionalism and the Separation of Powers (1967).

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 federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction The question is how the idea which is embodied in the brief phrase "the judicial power of the Commonwealth", read against its historic background, is to be understood today. This question is far removed from an inquiry whether an official or statutory body exercises a judicial function or is required to act in a judicial manner. That is a question which often arises in other fields of law, especially in connexion with the supervisory jurisdiction that, by means of writs of certiorari and prohibition, superior courts can exercise over the proceedings of administrative bodies. This topic has become in recent times of outstanding importance. A useful starting point for consideration of it are the articles "Administrative Tribunals and the Courts" in the Law Quarterly Review, vol. 49 (1933), pp. 94-120 and 419-442. But much has been written since then, stimulated by the Report of the Committee on Ministers' Powers. There are numerous references and a somewhat iconoclastic discussion of the topic in Doctor S. A. de Smith's book, Judicial Review of Administrative Action, pp. 34-50. Much of the learning there assembled is beside the point for present purposes, except as a caution against straying. We are not here concerned with the nature of the judicial process but with the nature of the judicial power. A body whose primary purpose is administrative does not become a court merely because it must act judicially.

In Reg. v. Davison [1] Dixon C.J. and McTiernan J. said: "Many attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive." Their Honours went on to discuss attempts made in earlier cases, including some from the United States of America. They referred to a paper by Dean Pound, and remarked that "the learned writer places more reliance in all matters of judicial power upon history than upon juristic analysis". There have nevertheless been important essays in describing, if not precisely defining, the nature of the judicial power. As I read them none provides a touchstone for all cases that arise, but they furnish guidance. Lord Guest and Lord Devlin in 1968, in a dissenting judgment in a case in the Privy Council to which I shall refer later, said:

Judicial power is a concept that is capable of clear delineation. It has to be, since it is the basis of a constitutional requirement and legislation which falls on the wrong side of the line can be completely avoided. It has been considered many times in relation to those constitutions, particularly the Australian, which provide for the separation of powers. But, although the concept can be delineated and this Court has often had to say on which side of the line a matter falls, the question can give rise to deep controversy. This case shews that. The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law. However, to shew what I take from cases in the past, I quote some pronouncements. 1. (1954) 90 C.L.R., at p. 366.

Judicial power in the United States was in 1891 defined by Miller J. in his Lectures on the Constitution of the United States as the power "of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision" (p. 314). In 1911 the Supreme Court of the United States said that the term connotes "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction": Muskrat v. United States [2] . Coming to Australia, the classic statement is that of Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead [3] :

I am of opinion that the words "judicial power" as used in s. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. That was approved by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation [1] as "one of the best definitions" of judicial power. And in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [2] the Privy Council referred to it again, their Lordships saying: "Without attempting to give a comprehensive definition of judicial power, they accept the view that its broad features are accurately stated in that part of the judgment of Griffith C.J." That, as Kitto J. pointed out in Reg. v. Davison [3] , is only an approval of the passage as a statement of the "broad features" of the judicial power: and it is noteworthy that their Lordships went on to say: Nor do they doubt that there are many positive features which are essential to the existence of judicial power, yet by themselves are not conclusive of it, or that any combination of such features will fail to establish a judicial power if, as is a common characteristic of so-called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also. In the Shell Co's. Case [4] Lord Sankey, delivering the judgment, said [5] : The authorities are clear to show that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial power.

In that connexion it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body. See R. v. Electricity Commissioners [6] .

1. [1924] 1 K.B. 171.
   1. (1911) 219 U.S. 346, at p. 361 [55 Law. Ed. 246, at p. 252].
   2. (1909) 8 C.L.R., at p. 357.
   3. [1931] A.C. 275, at p. 295.
   4. [1949] A.C., at p. 149.
   5. (1954) 90 C.L.R., at p. 380.
   6. [1931] A.C. 275.
   7. [1931] A.C., at pp. 296-297.
   8. [1924] 1 K.B. 171.

The Privy Council had the question again, more recently, in United Engineering Workers' Union v. Devanayagam [1] . The judgment of the majority of the Board was delivered by Lord Dilhorne. Lord Guest and Lord Devlin dissented. The question in the case was whether the president of a labour tribunal in Ceylon was the holder of a judicial office. If so, as the man in question had not been appointed in the way the Constitution of Ceylon required for appointments of judicial officers, the tribunal was without jurisdiction. The differing views in the Privy Council demonstrate how amorphous really is the concept of the judicial power. Both judgments contain much that is instructively relevant in this case. That of the majority because their Lordships, reviewing the duties and processes of labour tribunals as set up by the law of Ceylon, said that, " in determining whether or not the office of president is a judicial office, regard must be had to all the functions such a tribunal may be required to discharge" [2] . The functions of the tribunal were considered to see how far, looked at as a whole, they were functions of a kind ordinarily discharged by courts administering law, courts unquestionably exercising the judicial power of the State. It appeared to their Lordships that "far from being established in substitution for or as an alternative to the ordinary courts, labour tribunals were created as part of the machinery for preventing and settling industrial disputes". From the judgment of their Lordships of the minority I quote one passage [3] :

Another characteristic of the judicial power is that it is concerned with existing rights, that is, those which the parties actually have at the inception of the suit and not those which it may be thought they ought to have; it is concerned with the past and the present and not with the future. This accords directly with the statement by Holmes J. in the Supreme Court of the United States in Prentis v. Atlantic Coast Line Co. [4] : A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. According to historic analysis, the essence of the distinction between legislative power and judicial power is that the legislature makes new law which becomes binding on all persons over whom the legislature exercises legislative power: the judicature applies already existing law in the resolution of disputes between particular parties; and judges may not deviate from this duty. This view of the distinction between the obligation to apply and enforce rules and a discretion to modify rules or make new rules was at one time applied uncompromisingly in describing functions as legislative or judicial. Thus De Lolme, writing in the eighteenth century, said that courts of equity as then existing in England had a legislative function. "They are", he said, "a kind of inferior experimental legislature, continually employed in finding out and providing law remedies for those new species of cases for which neither the courts of common law, nor the legislature, have as yet found it convenient or practicable to establish any": The Constitution of England, new ed. (1800), p. 149. I quote this, not merely as an antiquarian curiosity, but as shewing that, neither for logic nor in language, has the boundary between legislation and adjudication ever been rigidly and clearly drawn. 1. [1968] A.C. 356. 2. [1968] A.C., at p. 376. 3. [1968] A.C., at pp. 384-385. 4. (1908) 211 U.S. 210, at p. 226 [53 Law. Ed. 150, at p. 158].

In the case that I have mentioned, Lord Guest and Lord Devlin, the dissentients in the Privy Council, considered that the industrial tribunal whose jurisdiction was there in question was established to exercise judicial power. That was because in their view its determinations were not the creation of new rights but the declaration and enforcement of existing rights. It was directed by statute to make such award as appeared "just and equitable". That, they thought, predicated existing ascertainable standards. The majority of their Lordships did not take that view: and, so far as that case is pertinent for this, it is the majority view that we should accept.

I do not find it necessary to go in detail through the statutory provisions by which the Trade Practices Tribunal is set up and its jurisdiction and powers set out. They are stated in judgments of my brethren in this case. I shall therefore state my conclusions, noticing the main arguments, as I understood them, that were advanced by the prosecutor in support of its contention that the Act purported to confer the judicial power of the Commonwealth on the Tribunal.

Proceedings before the Tribunal involve it in deciding questions of fact, and of mixed fact and law, and deciding also questions of law in the sense of deciding whether a particular practice, restriction or agreement answers to the statutory description "contrary to the public interest" so that the Tribunal has jurisdiction to make an order or determination based upon the facts decided. These features were relied upon as basic to the prosecutor's argument. They of course shew that the task of the Tribunal is one of adjudication. That is because the ascertainment of facts and a pronouncement of their consequences by the application of some rule or standard is of the essence of all adjudication. It is exactly what the umpire at a cricket match does in response to the call "How's that?". But an exercise of judicial power, in the relevant sense, obviously means more than mere adjudication. First because it is the judicial power of the Commonwealth that is in question: and the constitutional question can thus only arise when a power of adjudication is exercisable by a Commonwealth official or some person appointed for that purpose under Commonwealth law. Yet, even so, it would be wrong to suppose that every person who is by the Commonwealth appointed to adjudicate upon a matter exercises the judicial power of the Commonwealth. Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of government. A Commonwealth officer who has to decide whether a particular university student is to have a Commonwealth scholarship exercises a power of adjudication: but he does not exercise the judicial power of the Commonwealth. A Customs official in deciding whether some article is a prohibited import or, if a permissible import, whether or not it is dutiable and in what sum exercises a judicial function: he looks to facts and determines whether they answer a particular statutory description. A police constable who arrests a man and charges him with a particular offence does much the same thing. Other instances can be found in statutes of the Commonwealth Parliament dealing with quarantine, export control boards in respect of various commodities, broadcasting and television (including censorship), and in provisions of the Commonwealth Electoral Act. All these - and there are many others - are examples of the exercise of a judicial function by Commonwealth officials. They must perform their tasks in a judicial manner, and in accordance with the dictates of natural justice so far as the circumstances allow. In some cases - that of the police constable is one - what is done may be a preliminary step to the exercise by a court of the judicial power. But that does not mean that the police constable who lays a charge, or the law officer of the Crown who later decides whether or not to file a bill, are exercising the judicial power. That only occurs at the final stage of the process when the man charged is tried by a court. As Griffith C.J. put it in the passage I have already quoted [1] :

The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. 1. (1909) 8 C.L.R., at p. 357.

The Tribunal is empowered to determine whether or not "an examinable agreement" exists or has existed or "an examinable practice" has been or is proposed to be engaged in. If it is satisfied of these matters, which may be called conditions of its jurisdiction, it must then decide whether the restrictions produced by the agreement are, or the practice is, "contrary to the public interest". A decision on the jurisdictional fact is a preliminary to a determination of whether the agreement or practice is contrary to the public interest. I do not think that the consideration of the preliminary question and adjudication upon it is an exercise of the judicial power. In my opinion, deciding whether or not a fact exists on which jurisdiction depends is not an exercise of the judicial power unless the jurisdiction dependent upon the decision is itself part of the judicial power, not an administrative jurisdiction. In other words, an incidental and preliminary inquiry takes its character, for relevant purposes, from the character of the jurisdiction of which it is a phase.

The Tribunal's decision of whether there is an examinable agreement or examinable practice is itself examinable. It is a condition of jurisdiction, a decision that facts answer a statutory requirement. Whether that be called a question of law (according to the doctrine Lord Parker of Waddington expressed in Farmer (Surveyor of Taxes) v. Cotton's Trustees [1] ), or a question of fact, or of mixed fact and law, really does not matter. The condition of the Tribunal's jurisdiction is its satisfaction of the existence of an examinable agreement or practice. If it assumed jurisdiction when there was no evidence which could reasonably have led to it being so satisfied, then I think prohibition could issue from this Court. The Tribunal is expressly subject to the control of the judicial power by means of the prerogative writs and injunctions: s. 102. I certainly do not intend to minimize the power of courts to use the instruments with which the law provides them to keep administrative bodies to their proper tasks and to ensure that they duly perform them. But to say that they are subject to the judicial power does not mean that they themselves exercise it. That an administrative tribunal is subject to judicial control certainly does not mean that it exercises the judicial power of the Commonwealth.

Proceeding from the preliminary inquiry to the next stage - the adjudication of whether a matter is "contrary to the public interest" - 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. The Act directs the Tribunal as to matters it is to "take into account" in considering what the public interest requires. The generality of these matters prevents their providing objectively determinable criteria. In the result the jurisdiction of the Tribunal to make determinations and orders depending upon its view of where the public interest lies and what the public interest requires seems to be an exercise of a legislative or administrative function of government rather than of the judicial power. Adopting what Kitto J. said in Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1] :

The authorized act itself, though not inherently incapable of judicial performance, may be by nature more appropriate for administrative performance. The possible effects of the act when done upon persons, situations and events may be such as to suggest the probability that decisions to exercise or to refrain from exercising the power were intended to be made upon considerations of general policy and expediency alien to the judicial method. The circumstances in which the power is to be exercisable may be prescribed in terms lending themselves more to administrative than to judicial application. 1. (1957) 100 C.L.R. 277, at p. 305.

As an illustration, I take the earlier case of Cornell v. Deputy Federal Commissioner of Taxation (S.A.) [2] . There, in answer to a contention that the Commissioner of Taxation had been invalidly exercising the judicial power, the Court said [3] :

It is a sufficient answer to this contention to point out that the Commissioner of Taxation, in exercising the power conferred upon him , is not in any relevant sense acting judicially - that is, he is not exercising judicial power. His power is merely to determine as an administrative officer whether in his opinion the company has distributed by way of dividend a fair proportion of its profits. It is tempting to give as a sufficient answer to the present prosecutor's contention an equally summary reply: for as I see it the Tribunal's duty to ascertain the public interest, and make orders accordingly, can be aptly called administrative or quasi-legislative - if the prefix "quasi" is thought to add anything here to the adjectival description and is used in the sense of "virtually". But, to say only that might seem to deal unjustly with some of the arguments that were advanced and which I therefore pass to consider. 1. (1920) 29 C.L.R. 39. 2. (1920) 29 C.L.R., at p. 47.

It was said that the duty of the Tribunal to give effect to its view of the public interest could be likened to cases in which courts give effect to the common law's concept of public policy. Why, it was asked, when courts will not enforce transactions that are against public policy, should it be said that the condemnation of a transaction on the ground that it is contrary to public interest is not a decision based upon existing legal rights. Two things spring to mind. The first is that today public policy is not at large as an element in the common law. It is generally said to be confined under recognized "heads", whereas the Tribunal, guided only by its statute, looks to the public interest unfettered by precedents. The second thing is that, although courts do not compel parties to perform agreements that are contrary to a public policy that has become recognized and established by the common law, they do not necessarily prevent the parties keeping their promises if they choose to do so: but the Tribunal does not merely say that an agreement is void or unenforceable as between the parties: it can prohibit their giving effect to it. Admittedly one of the basic concepts of the common law is the idea of reasonableness. This, it may be urged, is an idea as indefinite as is the public interest. But is it really so? What price is reasonable for goods sold, whether a man has acted as a reasonable man would, or has acted negligently - these are questions that a jury can be called upon to answer. It is true too that the historic hostility of the common law to contracts in restraint of trade was unequivocally declared in the Nordenfelt Case [1] when Lord Macnaghten said [2] :

Restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable - reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public. I do not doubt that in considering the public interest the Trade Practices Tribunal should have regard, among other things, to the same general considerations of reasonableness in reference to the public interest as a court would if asked by a party to an agreement to declare it unenforceable because in unreasonable restraint of trade. Nevertheless, in applying the idea of public interest, as adumbrated by the Act, the Tribunal is more at large than is a court exercising the judicial power and asking what are the limits of reasonableness. 1. [1894] A.C. 535. 2. [1894] A.C., at p. 565.

It is significant, I think, that in the United States the expressions "public interest", "public convenience, interest, or necessity", when used by Congress, have been held to state standards sufficient to support the exercise of a function by administrative agencies: e.g. Sunshine Anthracite Coal v. Adkins, Collector of Internal Revenue [1] ; National Broadcasting Co. Inc. v. United States [2] ; and see too the formidable article by Professor Green, Separation of Governmental Powers, Yale Law Journal, vol. 29, p. 369, especially at p. 378, written in 1920 but still valuable and suggestive. The American cases turn on the constitutional inability of Congress to delegate its legislative power. This limitation is avoidable, in substance though not in form, by the device of empowering a filling up of details in a legislative scheme. That problem has no place in our constitutional law. Nevertheless, the American cases are significant for the decision that the delegation by the legislature to an administrative agency of a power to decide according to the public interest was not considered to be delegation of judicial power. "To hold that", the Supreme Court said in the first of the two cases above mentioned, "would be to turn the clock back on at least half a century of administrative law".

1. (1940) 310 U.S. 381, at pp. 398-400 [84 Law. Ed. 1263, at pp. 1273-1275]. 2. (1943) 319 U.S. 190. at pp. 225-226 [87 Law. Ed. 1344, at p. 1367].

The Tribunal is not set in motion to adjudicate in a dispute between parties. It is set in motion by the Commissioner of Trade Practices. Indeed, as I understand the Act, individual persons cannot directly initiate proceedings. This may lessen the effectiveness of Parliament's plan; but it is an additional feature that tells against the proposition that the Tribunal exercises the judicial power. It was said in answer to this that the Commissioner, when he initiates proceedings before the Tribunal, exercises a function akin to that of a director of public prosecutions seeking to have the penal law enforced. That seems to me farfetched. I think that on ultimate analysis what the Commissioner does is to bring matters to the notice of the Tribunal with a view to its exercising, in an administrative way, a subordinate quasi-legislative function conferred upon it by Parliament. That function is in my opinion validly conferred. The exercise of it remains in the control of Parliament: see Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [3] . That the determinations of the Tribunal are "binding and authoritative", the phrase which Griffith C.J. used, is not to my mind compelling either way. One attribute of the decision of a court is not to be made the touchstone of the judicial power. Many decisions of Ministers of the Crown are binding and authoritative; but Ministers do not exercise the judicial power of the Commonwealth.

I do not presume to attempt to define, by paraphrase or precise description, the phrases of s. 71 of the Constitution. The decided cases are a warning against that. I say only that, looking at the functions of the Tribunal as a whole, I think that they do not involve its exercising the judicial power of the Commonwealth. The Tribunal is, I think, validly constituted to exercise the functions Parliament has committed to it. I express no opinion on whether, without the aid of the Tasmanian Act, the Trade Practices Act is within the constitutional power of the Commonwealth Parliament. What I have said relates only to the particular attack on it as involving a contravention of s. 71.

This Court has the duty of keeping the Parliament within its constitutional bounds. But it is equally its duty itself to keep within the province marked out for it as the judicial power of the Commonwealth. The Court, no less than the Parliament, must observe the separation of powers. I see no compelling reason in this case for setting at naught the declared will of the duly elected Parliament of the Commonwealth.

The prosecutor in these proceedings seeks to make absolute an order nisi for prohibition directed to the Trade Practices Tribunal (the Tribunal) and its members and the Commissioner of Trade Practices (the Commissioner) prohibiting them from proceeding further with proceedings instituted by the Commissioner against the prosecutor under s. 47 of the Trade Practices Act 1965-1968 Cth. The sole ground upon which prohibition is sought is that the Act purports to vest the Tribunal with judicial power and that it is not a court created in accordance with Ch. III of the Constitution.

The general purpose of the Act is described as being "to preserve Competition in Australian Trade and Commerce to the extent required by the Public Interest" and it is, I think, desirable to give a summary of what seem to me to be those of its provisions which are relevant for present purposes. Part II provides for the establishment of the Tribunal, consisting of a President and such number of Deputy Presidents and other members as may be appointed by the Governor-General (s. 9). The President and Deputy Presidents are required to possess legal qualifications and to qualify for appointment as a member other than a presidential member the appointee must appear to the Governor-General to be qualified by virtue of his knowledge of, or experience in, industry, commerce or public administration (s. 10). Appointments to the Tribunal are for a period not exceeding seven years but a member is eligible for re-appointment (s. 11). Officers of the Public Service are eligible for appointment (s. 12). Acting appointments may be made (s. 13) and there is provision for the suspension or removal of members (s. 14). For the purpose of hearing and determining proceedings, the Tribunal is to be constituted by a Division consisting of a presidential member and two members who are not presidential members unless the parties agree that it shall be constituted by a single presidential member (s. 17) and, subject to Div. 3 of Pt VI, a question of law arising in a matter before the Tribunal is to be determined in accordance with the opinion of the presiding presidential member (s. 21). Part III provides for the appointment of a Commissioner of Trade Practices and his functions are admittedly administrative. Part IV is headed "Examinable Agreements and Practices". It defines the words "examinable agreement" (s. 35) and it is sufficient for present purposes, I think, to say that such an agreement is one made between parties who are carrying on businesses for the supply of goods or services which are competitive with one another and under which certain specified restrictions are accepted by one or more of those persons in relation to any such business. Section 36 defines "examinable practice" and this includes "engaging in monopolization" as defined by s. 37. These definitions are to be read in the light of s. 7 which is no doubt intended to provide the constitutional foundation for the operation of the Act. By Pt V, the Commissioner is to keep a Register of Trade Agreements (s. 40) and, with certain exceptions, any agreement which is when made, or thereafter becomes, an examinable agreement is required to be registered (ss. 41-44). Part VI is headed "Examination of Agreements and Practices by the Tribunal". It provides, in Div. 1, that where the Commissioner has reason to believe that an examinable agreement exists or has existed and is of opinion that any relevant restriction accepted under the agreement is contrary to the public interest, he may institute proceedings in the Tribunal in respect of that restriction (s. 47 (1)). Similar provision is made with regard to an examinable practice which the Commissioner considers to be contrary to the public interest (s. 47 (2)). Such proceedings are not to be instituted unless and until the Commissioner has consulted or endeavoured to consult with the parties concerned with a view to securing such action by them by way of determination, cessation or variation of the agreement or practice as will render the proposed proceedings unnecessary (s. 48 (1)). In proceedings under s. 47, the Tribunal, if satisfied that an examinable agreement exists or has existed or an examinable practice has been, is being, or is proposed to be, engaged in, is to make a determination by which it is to record its findings as to these matters and determine, in accordance with its opinion, whether the restriction or the practice to which the proceedings relate is contrary to the public interest and it is required to record the reasons for its opinion (s. 49). Section 50 should, I think, be set out in full since it sets out a series of general economic and policy matters to which regard is to be had by the Tribunal in determining whether a restriction or practice is contrary to the public interest. It provides that:

(1) In considering whether any restriction, or any practice other than a practice of monopolization, is contrary to the public interest, the Tribunal shall take as the basis of its consideration the principle that the preservation and encouragement of competition are desirable in the public interest, but shall weigh against the detriment constituted by any proved restriction of, or tendency to restrict, competition any effect of the restriction or practice as regards any of the matters referred to in the next succeeding sub-section if that effect tends to establish that, on balance, the restriction or the practice is not contrary to the public interest.

(2) The matters that are to be taken into account in accordance with the last preceding sub-section are -

(a) the needs and interests of consumers, employees, producers, distributors, importers, exporters, proprietors and investors;

(d) the need to achieve the full and efficient use and distribution of labour, capital, materials, industrial capacity, industrial know-how and other resources;

(e) the need to achieve the production, provision, treatment and distribution, by efficient and economical means, of goods and services of such quality, quantity and price as will best meet the requirements of domestic and overseas markets; and

(f) the ability of Australian producers and exporters to compete in overseas markets.

(3) In considering the public interest in relation to a practice of monopolization, the Tribunal shall weigh against any detriment (including detriment constituted by any proved restriction of, or tendency to restrict, competition) that has resulted, or can be expected to result, from the practice any effect of the practice as regards any of the matters referred to in paragraphs (a) to (f) of the last preceding sub-section if that effect tends to establish that, on balance, the practice is not contrary to the public interest.

If the Tribunal determines that a restriction under an examinable agreement is contrary to the public interest, the agreement becomes, upon the date of the determination, unenforceable as regards observance of the restriction on and after that date (s. 51 (1)). If it determines that a practice is contrary to the public interest and finds that the practice is provided for by an agreement, the agreement becomes, upon the date of the determination, unenforceable as regards engaging in the practice on and after that date (s. 51 (2)). Where a determination has been made that a restriction under an examinable agreement or a practice is contrary to the public interest, the Tribunal may make orders restraining the parties from giving effect to the restriction or practice as the case may be (s. 52) and, subject to s. 57, its orders are to have the force of law (s. 52 (7)). Interim restraining orders may also be made (s. 54). Section 57 deals with the duration and operation of orders made by the Tribunal and s. 58 enables it, in certain circumstances, to give further consideration to determinations and orders made by it and to rescind or vary them. Division 2 of Pt VI makes provision whereby the Commissioner may, by leave of the Tribunal, file a certificate that a restriction under an examinable agreement or an examinable practice is not contrary to the public interest (s. 59) and, in certain circumstances, he may be directed by the Tribunal to apply for leave to do so (s. 61). Division 3 of Pt VI is headed "Review of Determinations, and Judicial Determination of Questions of Law". It sets up a Review Division of the Tribunal consisting of three presidential members (s. 62) and provides that where the Tribunal has made a determination in any proceedings, a party to those proceedings may apply to the Review Division for an order that the determination be reviewed on the grounds that it is based upon reasons which are inconsistent with the reasons for another decision of the Tribunal or that it is of such importance that in the public interest it should be reconsidered or that a material error of law was made by the Tribunal in the hearing or determination of the proceedings (s. 63). Where the reconsideration of a determination has been directed by the Review Division, the Tribunal is required to reconsider its determination (s. 65). By s. 66 the Tribunal may, of its own motion or on the application of a party, and provided that the presidential member of the Tribunal concurs, refer a question of law arising in proceedings before it for determination by the Commonwealth Industrial Court. By the same section the Commonwealth Industrial Court is empowered to hear and determine a question of law thus referred to it. Part VII is headed "Enforcement of Orders of Tribunal". It provides that a person who contravenes or fails to comply with an order of the Tribunal or of an undertaking given to it is guilty of a contempt of the Tribunal (s. 67) and that such a contempt shall be punishable by the Commonwealth Industrial Court as if it were a contempt of that Court (s. 68). Part VIII deals with "Procedure and Evidence". The proceedings before the Tribunal are to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act and a proper consideration of the matters before the Tribunal permit and it is not to be bound by the rules of evidence (s. 70). It may take evidence on oath (s. 72) and, with some exceptions, the hearing of proceedings before it are to be in public (s. 73). Under Pt X a person who suffers loss or damage by an act of another done in contravention of an order of the Tribunal may maintain an action for damages in the Commonwealth Industrial Court and, subject to s. 75 of the Commonwealth Constitution, the jurisdiction of that Court to hear and determine such an action is declared to be exclusive (s. 88). Part XII contains a number of miscellaneous provisions. In proceedings to enforce orders of the Tribunal under Pt VII or to recover damages under Pt X, a determination or order of the Tribunal out of which the proceedings arise is evidence of the facts stated in the determination or order to have been found by the Tribunal (s. 97); and the validity of a determination or order of the Tribunal is not to be challenged, reviewed or called in question in any proceedings, subject, however, to the exercise by the High Court of its jurisdiction to issue a writ of prohibition, mandamus or certiorari or to grant an injunction (s. 102). This, I think, provides a sufficient outline of the relevant statutory provisions.

The submissions made by counsel for the prosecutor in support of the view that the Act confers judicial power upon the Tribunal are based in the main upon these propositions:

1. The Tribunal is required to determine questions of law and fact, including questions going to its jurisdiction.

2. The validity of its determinations and orders is not to "be challenged, reviewed or called in question in any proceedings", otherwise than by means of the prerogative writs or by an injunction granted by the High Court.

3. In certain circumstances it may, under ss. 52 and 54, make orders restraining persons from giving effect to restrictions which it decides are contrary to the public interest and this, it is said, is a provision enabling the Tribunal to enforce its orders and determinations.

In addition, reliance is placed upon the fact that the Tribunal has "many of the trappings of a Court", to adopt the phrase used by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation [1] . 1. [1931] A.C., at p. 296.

But the matters relied upon do not necessarily lead to the conclusion that the Act purports to confer judicial power upon the Tribunal. The fact that that body may be called upon to determine jurisdictional questions of law and fact and that the validity of its determination and orders is not to be called in question save by means of the prerogative writs or by injunction does not establish that the legislative intention was to confer judicial power upon it and, while it is true to say that, subject to the supervision afforded by the prerogative writs, the Tribunal's functions involve deciding questions of fact and of law as to existing rights, that power is conferred not for the purpose of giving effect to or enforcing those rights but to enable it to form an opinion whether it would be contrary to the public interest to allow them to be exercised in the future. A somewhat similar kind of function may be, and sometimes is, entrusted to those whose functions are administrative in character and who do not exercise judicial power. For example, the powers conferred upon a commissioner under the Conciliation and Arbitration Act in many respects resemble those conferred upon the Tribunal. Further - and this is I think a most material matter - the Tribunal has no power to enforce its determinations or orders. While the absence of such a power does not necessarily mean that a person or body is not exercising judicial power (see Reg. v. Davison [2] ), it is to my mind a strong indication that judicial power is not intended to be conferred. The Tribunal may, of course, under ss. 50 and 54, make orders restraining persons from giving effect to restrictions or practices which it thinks contrary to the public interest but I do not regard that as amounting to a power of enforcement. Such an order would, it seems to me, do no more than lay down a rule, which is to have the force of law, that some right or practice which has been found to exist is not, in the future, to be exercised or followed, but there is no power in the Tribunal to compel compliance with any restraining order which it sees fit to make. In this connexion a passage from the joint judgment of Isaacs and Rich JJ. in Alexander's Case [3] , which was quoted in the judgment of Dixon C.J., McTiernan, Fullagar and Kitto JJ. in the Boilermakers' Case [1] , is, I think, in point. Their Honours were comparing the arbitral powers of the Court of Conciliation and Arbitration with the judicial power and they said [2] :

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. 1. (1954) 90 C.L.R., at p. 368. 2. (1918) 25 C.L.R. 434. 3. (1956) 94 C.L.R., at pp. 281-282. 4. (1918) 25 C.L.R., at p. 463.

When all the relevant provisions of the Act are examined, it seems to me to be plain that its draftsman was at pains to ensure that judicial power was not conferred upon the Tribunal. In particular does this seem to me to be so when regard is had to the qualifications required for appointment as a member of the Tribunal, other than a presidential member, namely knowledge of or experience in industry, commerce or public administration; to the questions of general economic policy to which regard is to be had in determining whether a restriction or practice is contrary to the public interest; and to the absence of any power in the Tribunal to enforce its determinations and orders. In my opinion the intention of the Parliament, as expressed in the statute, was to create a tribunal with administrative functions and to avoid clothing it with judicial power.

This is an application to make absolute an order nisi for a writ of prohibition directed to the members of the Trade Practices Tribunal and to the Commissioner of Trade Practices prohibiting them from proceeding further in proceedings instituted in the Tribunal, upon the ground that ss. 9-22, ss. 49-84 and s. 102 of the Trade Practices Act 1965-1968 Cth are invalid. The contention of the prosecutor is that ss. 49-84 and s. 102 purport to invest part of the judicial power of the Commonwealth in a tribunal which is not validly constituted in accordance with Ch. III of the Constitution as a court capable of exercising such power. In other judgments the principal provisions of the Act have been set out and I need not refer to them in detail.

In the proceedings which have been instituted by the Commissioner of Trade Practices, in reliance upon s. 47 of the Act, it will become the duty of the Tribunal under s. 49 to carry out in the first place "such inquiry as it considers appropriate having regard to the matters alleged by the Commissioner". Whether or not it proceeds any further will depend upon the fulfilment or non-fulfilment of a condition expressed in the words "if it is satisfied that an examinable practice has been, is being or is proposed to be, engaged in". If this condition is satisfied the Tribunal will then be required to make a determination by which it will record its findings as directed by par. (a) of s. 49 (1) and will determine, "in accordance with its opinion", whether the examinable practice is contrary to the public interest. It will also be required to state and to record the reasons for its opinion that the practice is, or is not, contrary to the public interest.

The first stage of the proceedings under s. 49 is an inquiry to enable the Tribunal to decide whether or not "it is satisfied" of a matter described in the first part of s. 49 (1). When it is not so satisfied the proceedings come to an end. No determination is made. When the Tribunal is so satisfied, there is no direct consequence which attaches immediately to an agreement or practice or to the rights of any party to it or participant in it. The consequence of that decision is that it establishes the basis upon which a second stage of the proceedings rests. The second stage consists of the making of a determination. The first part of this determination is simply a recording of findings already made in the first stage of the proceedings. The second part of it is a determination by the Tribunal "in accordance with its opinion" whether relevant restrictions to which the proceedings relate are contrary to the public interest or, as the case may require, whether an examinable practice is contrary to the public interest.

If the proceedings go beyond what I have called the first stage it is to the determination made at the conclusion of the second stage that the legislation attaches consequences.

In my opinion the investigation and the adjudication which constitute the second stage of the proceedings are of such a character that no exercise of the judicial power of the Commonwealth is involved in them. In s. 50 directions are given as to the manner in which the Tribunal is to consider and decide the question whether or not a relevant restriction or an examinable practice is contrary to the public interest. Having regard to the qualifications for appointment of members of the Tribunal (s. 10), the constitution of the Tribunal for the purpose of hearing and determining proceedings (s. 17), and the matters that are to be taken into account as directed by s. 50, I am of opinion that the intention disclosed by the Act is that an adjudication by the Tribunal upon the question of public interest is not to be made in accordance with judicial standards, but is to be governed by a balancing of various considerations of economic and commercial policy, and by the forming of opinions which are not dependent upon precise and definite criteria but upon a broad assessment of "the matters that are to be taken into account".

The conclusion which I have just stated does not dispose of the case. It is necessary to consider the proceedings as a whole and to determine whether or not the Act has entrusted to the Tribunal a task in the performance of which the exercise of judicial power is included as a part although not as the whole of its functions. In my opinion, this question is not to be resolved by examining separately each step in the proceedings without reference to its relationship to the proceedings as a whole. In considering the character of the inquiry which constitutes the first stage of the proceedings it is important to have regard to the end to which it is directed. This first inquiry may require the ascertainment of facts and the application to them of the law, including the making of decisions as to the interpretation of the provisions of the Act, such as ss. 35-39 and s. 96. I think that these are functions which could be properly carried out by a court. But the fact that they are susceptible of judicial performance does not compel the conclusion that the Tribunal in performing them will be exercising judicial power. It will not perform them for the purpose for which ordinarily a court makes its decisions on the facts and on the law, that is, in order that it may then declare award or impose some right obligation or penalty and proceed, if necessary, to enforce its declaration or order. In performing these functions, the Tribunal will be engaged in making a preliminary decision, which the Act has made a condition upon which depends the question whether it will proceed or not proceed to undertake its main function of making a determination which (according to the opinion I have already stated) is not itself of a judicial character. It is clear, in my opinion, that the conferring upon the Tribunal of authority to find facts and to make decisions of law is not itself conclusive of the existence in it of judicial power. Where such an authority is given, a decision as to the nature of the power so conferred depends upon an evaluation of all those features of it, including the purpose which it is intended to serve, which provide indications for or against its judicial character. One feature which I regard as providing a strong indication against attributing to the adjudication made in the first stage of the proceedings the character of an exercise of judicial power is that it is an adjudication upon a preliminary question upon which depends the making of a further investigation which is not itself of a judicial character.

Some other considerations need to be noticed. The consequences which may attach to a determination under s. 49 (1) are prospective. Pre-existing rights may be affected, but only as from the time when a determination is made. Associated with that feature of the legislation is the fact that the Tribunal is given no power to enforce any determination or order which it makes. That power is committed to the Commonwealth Industrial Court. These features may not be decisive but, in my opinion, they are, at least, strong indications against the conclusion that the Act discloses an intention to confer judicial power on the Tribunal.

So far I have adverted to features of the legislation which seem to me to provide substantial reasons against concluding that the Act purports to assign to the Tribunal judicial power with which a tribunal, constituted as it is, cannot be constitutionally invested. It seems plain that the hope and expectation of those responsible for the framing of the Act was that it would not infringe the constitutional requirements for the conferring of judicial power. Nevertheless, if its provisions are such that those requirements are infringed then they must be declared invalid. But this is a conclusion which should not be lightly reached, and I think that there are strong indications against it. It is now necessary to refer to some contentions by which learned counsel for the prosecutor sought to demonstrate that the provisions under attack are invalid.

The first contention may be expressed in the following form. Since the determinations and orders of the Tribunal are not open either to appeal or to collateral challenge in other proceedings, so that its decisions not only as to facts but also as to the law, including decisions concerning the condition upon which its power to make a determination depends, are final, the making of such decisions which have legal consequences and affects rights is the exercise of judicial power. The argument does not depend upon an assertion that an exercise of judicial power is necessarily involved whenever there is a power to make decisions which affect rights. But where there is power to make a determination which is dependent, not upon the existence of an examinable agreement or practice, but upon the Tribunal's own "satisfaction" that it exists, or has existed, it is contended that this is indicative of judicial power. The argument is not without force, but I do not think that in this case the feature of the power upon which it is based can be regarded as conclusive of the question before the Court.

In R. v. Local Government Board for Ireland [1] Palles C.B. had to consider whether a determination of the Board had been made in the exercise of a judicial or of a ministerial power, in order to decide whether or not a writ of certiorari would lie in respect of it. In his reasons for judgment there is a passage [2] which has been cited in judgments of this Court, including that of Dixon C.J. and McTiernan J. in Reg. v. Davison [3] . In that passage Palles C.B. drew a distinction, which he thought was of critical importance for the resolution of the question with which he was dealing, between a power to make a determination which binds "although it is based on an erroneous view of facts or law" and a power to make a determination which is conferred in such terms that it does not bind unless, in fact, the contingency upon which the power depends has happened, and that, therefore, the determination may be questioned in a subsequent proceeding, on the ground that the contingency has not happened. The comment which Dixon C.J. and McTiernan J. made [4] on that passage was that the element which Palles C.B. emphasized was "the determination of existing rights as distinguished from the creation of new ones". It appears, however, from the judgment of Palles C.B. and from his endorsement [5] , of a passage which he cited from Reg. v. Corporation of Dublin [6] , that he would have accepted the proposition that any act done by a competent authority "upon consideration of facts and circumstances, and imposing liability or affecting the rights of others" is a "judicial" act. That proposition would apply to an act which did not impose liability or affect rights by declaring and enforcing an obligation which had already been incurred by one party to another, but which affected rights only in the sense that rules were laid down to operate in the future and the observance of them would detract from the former rights of a party. It may be that a tribunal empowered to perform an act of that character would be obliged to act in a judicial manner. But that is a different question from that with which this case is concerned. I am unable to accept the view that the principles enunciated by Palles C.B. are to be applied here and treated as decisive of the question whether or not the functions committed to the Trade Practices Tribunal require the exercise of judicial power. In Reg. v. Davison [1] Dixon C.J. and McTiernan J. said:

Many attempts have been made to define judicial power, but it has never been found possible to frame a definition that is at once exclusive and exhaustive. In the present case I do not think that there is any single feature or element in the functions committed to the Tribunal which is conclusive of the question whether or not it would be required in performing them to exercise judicial power. The answer to the question is to be sought by an examination of all their elements or features. 1. [1902] 2 I.R. 349. 2. [1902] 2 I.R., at pp. 373-374. 3. (1954) 90 C.L.R., at p. 367. 4. (1954) 90 C.L.R., at p. 368. 5. [1902] 2 I.R., at p. 373. 6. (1879) 2 L.R. Ir. 371, at p. 376. 7. (1954) 90 C.L.R., at p. 366.

In the present case I am of opinion that the Tribunal would not be engaged in "the determination of existing rights". A conclusion that it would be so engaged does not follow from the fact that rights which the prosecutor previously had may be abrogated or altered by a determination operating prospectively. The circumstance that its determination is protected from challenge except by means of the prerogative writs is of significance in considering whether or not the Tribunal should be regarded as exercising judicial power but, in my opinion, it is not conclusive.

It is necessary to give some further consideration to the provisions of the Act which protect the decisions of the Tribunal from challenge or review. There are some difficulties in determining the combined effect of s. 52 (7) (which refers only to "orders" and declares that subject to s. 57 they have the force of law), s. 57, s. 98 and s. 102. Since a "determination" made under s. 49 includes the recording of findings of fact and s. 102 precludes any challenge to the validity of a determination or order it is not easy to discern how s. 98 is intended to operate. Again, s. 102 (1) refers to "any proceedings, including proceedings under Part VII or Part X". It is a possible view that it would operate to prevent a person prosecuted for an offence under s. 43 from challenging the correctness of a determination previously made that an agreement was an examinable agreement. But I do not regard it as necessary to a decision in this case to resolve those questions of construction.

The central point of the contention being considered is that the Tribunal has authority to make a decision that an examinable agreement or practice exists or has existed which binds and is not open to challenge, even if based upon error of law. It is submitted that the availability of the prerogative writs does not diminish in any way the force of the contention that the exercise of such an authority is the exercise of judicial power. But having regard to the nature of the question concerning which a tribunal has to be satisfied, I do not agree that the availability of the prerogative writs is of no significance.

The distinction between a jurisdiction or power which is made by the Act which confers it contingent upon the actual existence of some fact and one which is made contingent upon the opinion of a tribunal that the fact does exist is an important one. If the power of the Tribunal to make determinations and orders had been made to depend upon the objective existence of an examinable agreement or practice the Tribunal would have been without power to determine finally that fact. Its decision on it would not have been conclusive of its jurisdiction. The prosecutor relies strongly on the fact that the Tribunal has been given power to determine finally not only questions of fact but also questions of law, in reaching a decision that it is satisfied that an examinable agreement or practice exists or has existed. But it is important to observe that the Tribunal is required in making that decision to apply to the facts the statutory definitions contained in Pt IV of the Act. Therefore, although the condition of its power to make determinations and orders is its own satisfaction of a matter to which the earlier part of s. 49 (1) refers, if this opinion is erroneous in point of law in that the Tribunal does not understand correctly or does not apply the relevant statutory provisions the condition is not fulfilled and any subsequent action based upon it is open to challenge. It is necessary that the opinion should be such that it could be formed by a reasonable man who correctly understands the law under which he acts: see Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [1] , and R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. [2] . From the existence of the right of an aggrieved person to challenge, in reliance upon those principles, a decision made by the Tribunal, it does not necessarily follow that the power which the Tribunal is to exercise is not a judicial power. But this right does constitute an important limitation upon the immunity of the decisions from challenge, upon which the prosecutor relies strongly in support of the argument that the power is part of the judicial power of the Commonwealth.

1. (1953) 88 C.L.R. 100, at p. 117. 2. (1944) 69 C.L.R. 407, at p. 430 and pp. 455-456.

I have come to the conclusion that in performing the functions committed to it by s. 49 the Tribunal is not to be regarded as exercising the judicial power of the Commonwealth either in the first stage or in the second stage of those proceedings. In reaching that conclusion I have taken into consideration the consequences which will or may flow from the making of a determination that an examinable agreement or practice exists or has existed. The consequences are either directly imposed by the Act (s. 51) or are dependent upon further action by the Tribunal itself under s. 52. I have stated earlier that the Tribunal is given no power to enforce its determinations and orders and that this is an indication against regarding it as being invested with judicial power. I have not overlooked a submission for the prosecutor that the making of an order under s. 52 is itself an enforcement by the Tribunal of a determination which it has already made and that such an order gives effect to rights or obligations which have already been created by the determination and by its statutory consequences and is, therefore, an order for the enforcement of those existing rights or obligations. I do not agree with that submission. If the Tribunal makes an order under s. 52, it does not do so because a party who invokes its jurisdiction has a right to obtain such an order. The Tribunal's discretionary power to make "such orders as it thinks proper" is really a power to regulate prospectively the conduct of the parties to whom it is directed. It is not a power to enforce a pre-existing right, at the suit of a party who comes before it asserting that right.

The submission to which I have just referred was directed to rebutting the view that the Tribunal is not given power to enforce its own decisions. But in addition, it was contended on behalf of the prosecutor that in any event the making of restraining orders, such as those which may be made under s. 52 or s. 54, is the performance of a function of the same character as that which is commonly performed by the ordinary courts in granting injunctions and this is a judicial function. But once the conclusion has been reached that in making a determination under s. 49 the Tribunal is not exercising judicial power but is carrying out an administrative or quasi-legislative function, I am of opinion that its function in making restraining orders should also be regarded as being of that same character. The same view should also be taken of its exercise of incidental powers, such as that conferred by s. 58 to reconsider determinations and by s. 66 to refer a question of law to the Commonwealth Industrial Court. The conferring of the power to make restraining orders should be considered as part of the method adopted to implement the legislative design to regulate prospectively the rights obligations and conduct of persons to whom the legislature has directed its attention. The legislation attaches consequences to a determination by the Tribunal that a restriction accepted under an examinable agreement or an examinable practice is contrary to the public interest. One consequence is attached directly by s. 51. Another consequence is contingent upon the making by the Tribunal of a discretionary order. Both may be properly described as legislative consequences. When power is exercised under s. 52 this is an implementation of the legislative scheme disclosed by the provisions of the Act. The power is a discretionary one. It is true that many judicial powers vested in courts are also discretionary. But I think that the discretion given to the Tribunal is of a different character from that which the Courts exercise. The latter discretion is exercised for the protection or enforcement of justiciable rights. The discretion of the Tribunal is exercised to serve the purposes of the Act, which are concerned with the public interest. Its exercise is not, in my opinion, an exercise of the judicial power of the Commonwealth.