Re Judiciary Act 1903-1920 and In re Navigation Act 1912-1920 [1921] HCA 20

Held by Knor, CJ., Gavan Duffy, Pourrs, Rich and Starke 33. (Higrine J. imisovaws, | Gisentng), that Part XI. of the Judiciary Act 1908-190, whch purports by Mey 16. | fe 8 to give the High Court jurisdiction to "hear and determiao" any

Aquattionrelerred to it by the Governor-General as to the vaity of any BRE C3 'enactment of the Parliament of the Commonwealth, and by sec. 93 to make 0avan Dal, We determination "final and conclusive and not subject to any appeal" i tn i Ets ald exerio of the logisative power conferred on the Pasameat by

Hal, also, by Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. (Higgins Sei a J. disenting), that the word "matter " in Chapter IIL. of the Constitution NPapy involves some right, privilege or protection given by law ot the prevention, pitm

redress or punishment of some act inhibited by law.

Per Higgins J. - {1) Part XII. ia valid, whether the determination is to be brea fread as mere advice or as a judicial decision ; but it is judicial decision, yy, artes sie hough not in the senso of settling a specie litigation Between parties: itis {>On

tot necessary for a judicial decision that there shall be opposing parties. (2) = An application under Part XII. is a " matter" within the meaning of s« Pires anh 'the Constitution ; but even ifitis no, sec 7 in vesting the judicial power of

Bi Simrscn in ttigh cone doco tery tise oie forauase "Zar Seale or judicial function shall be vested in the Court, (3) The cases in the United R(T" hy States rest on the very different words of the United States Constitution.

(0) Under sc, 51 (xxx1x.) of the Australian Constitution, Parliament can make 'lo iid of the execution of the exccutive powers vested inthe Government

'H.C. or A. Rererence by the Governor-General to the High Court.

Tooes®* the Executive Council, referred to the High Court the question

• Nasoaios whether and to what extent sees. 14, 43, 44, 195, 136, 288 and 293

Acting in pursuance of Part XII. of the Judiciary Act 1903-1999 the Governor-General of the Commonwealth, with the advice of

and Schedules I and II. of the Navigation Act 1912-1920 (No. 4 of 1913 - No. 1 of 1921) are valid enactments of the Parliament of the Commonwealth.

Leverrier K.C., Brissenden K.C. and Street, for the Attorney-General for the Commonwealth.

Sir Edward Mitchell K.C, and E. M. Mitchell, for the Neweastle and Hunter River Steamship Co. and a number of other owners of ships engaged in intra-State trade,

Broomfield K.C. and H. E. Manning, for the Attomey-General for the State of Western Australia.

Bavin and Braddon, for the Australasian Institute of Marine Engineers and others.

Owen Dizon, for the Attorney-General for the State of Victoria, took a preliminary objection, Part XII. of the Judiciary Act 1903- 1920 is invalid. The jurisdiction which that Part purports to invoke is not conferred upon the High Court by sec. 75 of the Constitution, and the only power under which such a jurisdiction could be con- ferred by the Federal Parliament upon the High Court is that con - tained in sec. 76, namely, "in any matter (1.) arising under this Constitution, or involving its interpretation." But the word "matter " there means a claim of right in litigation between parties, and an abstract question of law is not a" matter." 'That word has imsec, 75 the same meaning (State of South Australia v. State of Victoria (1) ). 'The word " matter" defines the subjects in respect of which the judicial power which is vested in the High Court by sec, 71 of the Constitution is to be applied. The provision in sec. 74

of the Constitution reserving the right of the Crown to grant special wwe to appeal to the Privy Council shows that in proceedings in High Court there must be parties who can appeal. What Part XIL, of the Judiciary Act seeks to obtain from the High Court is 4 judicial decision, and not an advisory opinion. 'That is shown by ee, 93, which purports to make the determination binding and eonclusive and not subject to any appeal. If that were not so, the power would not be judicial; and there is an implied prohibition inthe Constitution against conferring any other than judicial powers upon the High Court. See. 93 seeks to make the determination binding for all time, because the only persons upon whom it could be conclusive would be persons who afterwards sought to attack it,

[Kxox C.J. referred to Attorney-General for Ontario v. Attorney- General jor Canada (1).]

Part XII. of the Judiciary Act cannot be justified under any of the powers contained in sec. 51 of the Constitution. If it could, then the same jurisdiction might be conferred on any individual. Under the United States Constitution, where the words corresponding to "matter" are "cases" and controversies," it has been held that it is not part of the judicial power to give advisory opinions or decide abstract questions of law.

Leverrier K.C, Part XI. of the Judiciary Act is a valid exercise

'of the power conferred upon the Commonwealth Parliament by sec.

51 (xxxrx,) of the Constitution, Its provisions are incidental to the execution of the powers vested in the Parliament and in the Execu- tive. 'The incidental power includes a power which will assist the Executive to carry the law into effect, and the obtaining of a deter- "mination by the High Court as to the validity of Federal legislation Will assist the Executive to carry that legislation into effect. 'The words "hear and determine" are frequently used in relation to Persons or bodies which do not exercise any judicial powers; as sed in see. 89 of the Judiciary Act they do not import that the High Court in acting under it is exercising the judicial power of the Com- _ 'Monwealth, and a determination given under it does not bind the High Court when exercising that judicial power. The determination (1) (1912) A.C, 571, at p.

is intended to be not in the nature of a judgment in rem but only advisory, and binding on no one. (Kwox C.J. referred to Zn re Green (1) ; Green v. Lord Penzance 2),) The language of sec. 93 is not sufficient to make the determina.

Navzoam1o¥ tion binding on every one: its effect is merely that, the deter-

mination having been given, the matter can be carried no further. Tt may be that in that view sec. 93 is entirely unnecessary. There is authority under the Constitution to give to the High Court an advisory power as well as judicial power. {Counsel referred to the Tudicial Commitee Act 1833 (3 & 4 Will. IV. c. 41), sees. 3, 4, a8 to reference of questions to the Privy Council.]

{Ricn J, referred to Kx parte County Council of Kent (3); Over- seers of the Poor of Walsall v. London and North-Western Railway Co. (4)

[Sranke J. referred to In re Knight and Tabernacle Permanent Building Society (5).

[Rieu J. referred to Safford & Wheeler's Privy Councit Practice, pp. 33, 771]

'That the power is intended to be consultative only is borne out by the provisions that the Court may direct what persons are to be notified (sec. 91), that the Court may ask counsel to argue the ques- tion (sec, 92), and that the determination is to be final (sec. 93); showing that as it is not subject to appeal it is not to be binding on every one. [Counsel also referred to Attorney-General jor Ontario vy. Attorney-General jor Canada (6).)

If sec. 93 of the Judiciary Act indicates a judicial determination and is held to be therefore invalid, it is severable from the rest of the Act (Owners of s.s. Kalibia v. Wilson (8)

(Gavan Durry J. referred to Australian Steamships Led, v. Mal- colm (9).

[Hicoms J. referred to Waterside Workers' Federation of Australia v. J. W, Alevander Ltd. (10).]

() SLL. Q (2) 6 App. Cas, (@) (1891) 1 Q.b,, 7: (4) 4 App. Cas, 30. (6) (1892) 2 QB, 613,

(0) (1912) A.G, at p. 585. tp. 609, (7) (1896) A.C, 245,

Edward Mitchell K.C. Part XU. of the Judiciary Act is valid, intention is to give jurisdiction to the High Court to make a jal determination binding on the States, at any rate if they pear, on all persons who appear and on the Commonwealth. If 'that is the proper interpretation, the legislation is authorized by "set, 16 of the Constitution. The jurisdiction is in a matter in- _ yalving the interpretation, of the Constitution, 'The word "matter"

• ingec. 76 has a wider meaning than " case" or " controversy " in "the American Constitution. It does not involve the existence of a "is, It includes matters which are non-judicial, A "matter" is "something capable of judicial determination by the application of principles of law, and of a kind which ordinarily came before Courts for determination, 'The word "matter" should be given a broad general meaning, and not the narrow meaning given to the word "case" in the American Constitution, In Atorney-General for New South Wales v. Brewery Employees' Union of New South Wales (I) it was said that the Attomey-General of a State may obtain from the High Cout a declaration that an intrusion by the Pa ment of the Commonwealth into a field of legislation reserved to the "States was not authorized. Part XI. seeks to enable the Common- wealth to obtain a similar declaration, and unless a wide meaning
• is given to the word " matter" that object will be defeated. The jurisdiction is similar to that which a person may invoke a Court to 'exercise when he asks for the interpretation of a document or for a declaration of his rights.

[Kxox C.J. referred to Williams v. North's Navigation Collieries (1889) Led. (2); Offin v. Rochford Rural Council (3).)

Part XII. of the Judiciary Act is also authorized by see. 5L (xxxrx,) of the Constitution. It is incidental to the power conferred by see. 76 on the Parliament and to the executive power conferred by sec. 61 on the Governor-General, which extends to the execution and maintenance of the laws of the Commonwealth. See Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (4)

asto the extent of the incidental power. 'The jurisdiction given by

#668. 21aa of the Commonwealth Conciliation and Arbitration Act _

H.C. or A. 1904-1920 to the High Court to hear and determine a question as

to the existence of a dispute, and that given by see. 31 of the same Act to the High Court to hear and determine any question of law asked by the President of the Commonwealth Court of Conciliation

NavioaTtow gnd Arbitration, are similar to the jurisdiction given by Part XII.

of the Judiciary Act. In neither case is there any " matter" in the narrow sense, the only proceedings out of which the jurisdiction arises being before a non-judicial tribunal (Waterside Workers' Federation oj Australia v. J. W. Alexcnder Ltd.(1)). But the High Court has held that both sec. 21a and sec. 31 are valid (Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Proprietary Co, (2); Federated Engine-Drivers' and Firemen's Association of Australasia v. Colonial Sugar Refining Co. (3) )- If in a non-judicial proceeding the Parliament may authorize any person to apply to the High Court to get a determination as to the validity of any part of the Commonwealth Conciliation and Arbitra- tion Act, it cannot be said that the Parliament has no power to authorize the Executive to obtain from the High Court a determina- tion as to the validity of any Commonwealth enactment. 'The "matter" which is referred to in Part XII. is constituted by the application to the High Court for its determination.

Broomfield K.C. did not argue. Bavin adopted the arguments of counsel for the State of Victoria.

Owen Dizon, in reply. Whether Part XII. purports to confer power to make a curial order or to enable the opinion of the majority of the Iustices to be obtained, it is outside sec. 76 of the Constitution. In the one case the order sought does not relate toa "matter"; in the other the opinion neither relates to a "matter" nor is within the judicial power. 'The word "matter" means a claim of legal right - a claim by some one who ean legally enforee it. Part XII. eannot be supported by sec. 51 (xxx1x.) of the Constitution. "Matter" in pl. xxx1x, means something which may occur in the

of the legislative or executive power. to what the Legislature or the Executive is doing. If it {incidental to the legislative or executive power to have the declared by a determination whether binding on every one or one, jurisdiction to make the determination might be con- upon any individual, and if the determination were binding on 'one the opinion of that individual would be the measure of meaning of the Constitution.

also referred to Lejroy's Canada's Federal System, 2nd p. 674; United States v. Evans (1).]

The following written judgments were delivered : - 'Kxox CJ., Gavax Dvrry, Powers, Ricu ayp Starke JJ. is was a reference by the Governor-General under sec. 88 of the ciary Act for the determination of the question whether, and to extent, certain sections of the Navigation Act 1912-1920 are enactments of the Parliament of the Commonwealth. Mr. for the Attorney-General of the State of Vietoria, having the objection that Part XII. of the Judiciary Act, in which 88 is found, was beyond the powers of the Commonwealth the Court heard argument on that question before pro-

'to hear and determine the question referred.

• Tnorder to decide the preliminary question it is necessary first to in the meaning of the provisions of Part XII., which com- sees. 88-94. By sec. 88 Parliament purports to confer on Court * jurisdiction to hear and determine" "any question of 48 to the validity of any Act or enactment of the Parliament " ich " the Governor-General refers to the High Court for hearing determination." See. 89 provides that any mattet so referred be heard and determined by a Full Court consisting of all available Justices. Sec. 90 provides for notice of the hearing to given to the Attorney-General of each State, and for his right to or be represented at the hearing. Sec. 91 empowers the to direct that notice be given to other persons, and that they (2) 213. US, 297.

shall be entitled to appear or be represented at the hearing. Sec,

92 empowers the Court to request counsel to argue the matter as to any interest which in the opinion of the Court is affected and as to which counsel does not appear. See. 93 provides that the deter- mination of the Court upon the matter shall be final and conclusive and not subject to any appeal. Sec. 94 provides for the making of rules - none have yet been made.

Mi. Leverrier, for the Commonwealth, contended that a deter- mination of the Court pronounced under this Part of the Act: was, on the true construction of these sections, merely advisory and not judicial. In our opinion this contention is untenable. After care- fully considering the provisions of Part XII., we have come to the conclusion that Parliament desired to obtain from this Court not merely an opinion but an authoritative declaration of the law. To make such a declaration is clearly a judicial function, and such a function is not competent to this Court unless its exercise is an exercise of part. of the judicial power of the Commonwealth. If this be so, itis not within our province in this case to inquire whether Parliament can impose on this Court or on its members any, and if so what, duties other than judicial duties, and we refrain from expressing any opinion on that question. What, then, are the limits of the judicial power of the Commonwealth ? The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three lasses - legislative, executive and. judicial (New South Wales v. The Commonweaith (1) ). In each ease the Constitution first grants the power and then delimits the scope of its operation (Alerander's Case (2)). Sec, 71 enacts that 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 Parlia- ment creates, and in such other Courts as it invests with Federal jurisdiction. Secs. 73 and 74 deal with the appellate power of the High Court, and we need make no further reference to those sections as it is not suggested that the duty imposed by Part XII. of the Judiciary Act is within the appellate jurisdiction of this Court. See.

75 confers original jurisdiction on the High Court in certain matters, () 20CLR., 5A, at p88. (2) 25 CLR, at p. 44.

d sec, 76 enables Parliament to confer original jurisdiction on it H.C. oF A. other matters. Sec. 77 enables Parliament to define the juris '92!- jtion of any other Federal Court with respect to any of the matters ty ne

ioned in secs. 75 and 76, to invest any Court of the States with 771" jurisdiction in respect of any such matters, and to define Nsvtartox extent to which the jurisdiction of any Federal Court shall be achusive of that which belongs to or is invested in the Courts of Sian 3. "the States, This express statement of the matters in respect of which ick', and the Courts by which the judicial power of the Commonwealth

yy be exercised is, we think, clearly intended as a delimitation of 'the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclu- "sion of any other exercise of original jurisdiction. The question 'then is narrowed to this: Is authority to be found under sec. 76 _ of the Constitution for the enactment of Part XII, of the Judiciary At? See. 51 (xxx1x.) does not extend the power to confer original "jurisdiction on the High Court contained in sec. 76. It enables

• Parliament to provide for the effective exercise by the Legislature, "the Executive and the Judiciary, of the powers conferred by the Constitution on those bodies respectively, but does not enable it to 'extend the ambit of any such power. It is said that here is a matter arising under the Constitution or involving its interpretation, and that Parliament by sec. 30 of the Judiciary Act has conferred on this Court original jurisdiction in all matters arising under the Constitution or involving its interpretation. It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of sec. 76% We think not. It was suggested in argu- " ment that " matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding 'n-which this Court might be called on to interpret the Constitution byadeclaration at large, We do not accept this contention ; we do 'ot think that the word "matter" in sec. 76 means a legal pro- ceeding, but rather the subject matter for determination in a legal _ PYoceeding. In our opinion there can be no matter within the 'Meaning of the section unless there is some immediate right, duty 'liability to be established by the determination of the Court.

H.C. oF A. If the matter exists, the Legislature may no doubt prescribe the 1821. means by which the determination of the Court is to be obtained, and Iw ne for that purpose may, we think, adopt any existing method of legal

Forcs® procedure or invent a new one. But it cannot authorize this

Navicammox Court to make a declaration of the law divorced from any attempt

• to administer that law. 'The word " matter" is used several times Gavan Duty J. in Chapter III. of the Constitution (sees. 73, 74, 75, 76, 77), and BS," always, we think, with the same meaning. The meaning of the expression " in all matters between States " in see. 75 was considered

by this Court in State of South Australia v. State of Victoria (I). Griffith C.J. said that it must be a controversy of such a nature

that it could be determined upon principles of law, and in this Barton

J. agreed. O'Connor J. said that the matter in dispute must be

such that it can be determined upon some recognized principle of

law. Isoacs J. said that the expression "matters" used with reference to the Judicature, and applying equally to individuals

and States, includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject,

and which therefore governs their relations, and constitutes the measure of their respective rights and duties, Higgins J. appeared

to think that the expression involved the necessity of the existence

of some cause of action in the party applying to the Court for a declaration, He said (2): - "Even assuming that the State is to

be regarded as being substantially the donee of the power, I know

'of no instance in any Court in which a donee of a power such as this -

4 power in gross - has obtained by action a declaration that he has

the power. Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between

private persons, we could give relief on principles of law ; but not otherwise." 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. 'The adjudication of the

Court may be sought in proceedings inter partes or ex parte, or, if

Courts had the requisite jurisdiction, even in those administrative

with reference to the custody, residence and manage- H.C. oF A.

fof the affairs of infants or lunatics, But we ean find nothing 22!

spter III. of the Constitution to lend eolour to the view that In me

yent can confer power or jurisdiction upon the High Court T°PICIA"¥

determine abstract questions of law without the right or duty of 'body or person being involved.

"Daring the argument a strenuous attempt was made to show that Svan tiny 4

Court had, in earlier cases, approved of the exercise of original

ion in circumstances like those of the present case. We wve examined the cases relied on in support of this proposition, 'and we are satisfied that in all of them the use of the judicial power 'vas approved only when it was used for the purpose of effecting or 'assisting in effecting a settlement of existing claims of right under the law of the Commonwealth. In Federated Engine-Drivers' and Firemen's Association of Aus- tralasia v. Broken Hill Proprietary Co. (1) a case was stated by the Commonwealth Court of Conciliation and Arbitration for the opinion ofthe High Court, pursuant to sec. 31 of the Commonwealth Concilia- tim and Arbitration Act, upon certain questions of law arising in the proceedings before the Arbitration Court. This Court determined these questions of law. The provisions of sec. 31 provide for the determination of questions of law which affect the rights of parties to an award under the Arbitration Act. In our opinion, the deter- mination of such questions is a clear exercise of judicial power 'under see. 76 of the Constitution, and therefore rightly bestowed 'upon the Judiciary. In Federated Engine-Drivers' and Firemen's Association of Australasia v. Colonial Sugar Refining Co. (2) the 'Provisions of sec. 2144 of the Commonwealth Conciliation and Arbi- tration Act were upheld as a valid exercise of the legislative power of the Commonwealth. In connection with this section it is well _toremember that it is not within the jurisdiction of the Arbitration Court to determine whether a dispute of the character required by a the Constitution and the Arbitration Act exists or does not exist

• as to prevent prohibition issuing from the High Court if there is : 'In fact no dispute. The existence of the dispute is, however, a

• CMndition of jurisdiction (R. v. Commonwealth Court of Conciliation CLR, 103

H.C. oF A. and Arbitration; Ex parte Allen Taylor & Co. (1) ; Federated Engine. 1921- Drivers' and Firemen's Association of Australasia v, Broken Hill tx me Propritary Co. (2)). :

Jenrctany Now sec. 2144 provides a summary method for the determination

Nayioaniox by the Judiciary of the question of jurisdiction. It also provides

m to the fn iy 4. dispute or to the proceedings or to any award or order of the Court,

BENT," All these questions affect actual existing rights of parties to a dispute

which it is sought to determine under the Arbitration Act, and their decision is an exercise of the judicial power within the provisions of sec. 76 of the Constitution,

Bafana Clad-@)-Gesticel shat sho grovisions cf, Pega of the Arbitration Act relating to the formation and registration of organizations were within the legislative power of the Commonwealth. This conclusion was based upon the provisions of sec. 51 (xxxv.) and (xxxrx.) of the Constitution, The formation and registration of an organization is not and could not be part of the judicial power of the Commonwealth, and there is nothing in the case to suggest that it is. 'The decision of the Court is rested upon the view that proper representation of parties before the arbitral tribunal set up under the Arbitration Act was necessary to the execution of the arbitral power under sec. 51 (xxxv.) of the Constitution, and that to provide for their organization by means of registration was an incident to that power. The ease has no relevance, in this respect, to the judicial power of the Commonwealth or its exercise.

for the determination of questions of law arising in rel

Hicerss J. The Governor-General in Council, acting in pursu- ance of Part XII. of the Judiciary Act, has referred to this Court a question of law as to the validity of certain sections of the Navigation - Act - which has been enacted but not yet proclaimed.

'The preliminary point is taken, by counsel for the State of Vietoria, that Part XL is itself invalid, and that the Commonwealth Parlia- 'ment had no power to confer on the Court jurisdiction to hear and determine the question, The State of Western Australia and a 'number of shipowners support Part XII. as valid.

(1) 15 CLR, 586, at p. 606. (2) 12 C.LR., 898, at p. 454. (@) 6CLR, 309,

is the Executive Government of the Commonwealth that asks ar determination as to the Navigation Act. Under sec. 61 of Constitution, the executive power is vested in the King and is isable by the Governor-General as the King's representative, and extends to the execution and maintenance of this Constitution, d of the laws of the Commonwealth." When the Navigation Act med, certain drastic provisions for manning and accommo- n, involving grave structural alterations in the ships, will (if Act is valid) apply to the ships ; and the Government and the want to know how far the shipowners are obliged to the provisions, and how far the Government can enforce them. question before us now is, therefore, had Parliament power to the Government to come to this Court for guidance before the responsibility of enforcing the provisions. To ascertain, far as it is possible to ascertain, whether the sections of the Act are valid is necessary - incidental - to the execution d maintenance of the Constitution and the laws. But, it is said, nt has no power to confer upon this Court jurisdiction to and determine the question of validity. "Under sec. 51 of the Constitution the Parliament has power to " make laws for the peace, order and good government of the Common- | wealth "with respect to" many subjects, including trade and com- " metee with other countries and among the States ; and it has also Power (pl. xxxrx.) to make laws " with respect to matters incidental to the execution of any power vested by this Constitution in the _ Parliament or in either House thereof, or in the Government of the Commonwealth." Part XII. of the Judiciary Act seems to me to _eome precisely under these words. The Government must execute the laws so far as valid; and in order to carry out its duty it is bled by Part XIT. to get the highest legal opinion in the country 'As to the validity of the sections before acting on them. In my "opinion, Part XII. is valid, whether our determination is to be reated as mere advice or as a judicial decision. Much argument has been addressed to the question, Is it mere ce or is it a judgment that this Court is to give under Part XII. ? for the Commonwealth says it is mere adviee. I cannot this view with the strong words "hear and determine,"

"final and conclusive," &e, One may conjecture that the draughts- man used these words (which are the same as used in sec. 73 of the Constitution, as to appeals to the High Court) in order to avoid the possible objection that a mere advisory opinion is not part of the judicial power of the Commonwealth (sec. 71), and in order to satisfy the pronouncements of the Supreme Court of the United States against the giving of advisory opinions. But, to my mind, the distinction is immaterial. The determination sought is to aid the Government in the carrying out of its executive funetions ; and that is enough,

That a determination would be an aid to the Government is unquestionable, It would not be a judgment binding all the world, as has been suggested, or binding as res judicata between parties who have not been heard ; but it would be an authority of great weight

• a decision which, unless overruled, the Courts would follow in actions between parties ; just as a decision between A and B is an authority in a subsequent action between C and D, C and D are certainly "affected" by the decision between A and B; but it is open to C or D to satisfy this Court that the law of the decision was wrong. It is to be noticed that in see. 93 the word " binding"

final and conclusive" ; it was s0 used in the analogous Tasmanian Act discussed in Moses v. Parker (1). "Final and conclusive" means, in my opinion, that the deter- mination of the High Court is to be an end to the whole proceeding ; and, lest it should be contended that it is to be final and conclusive - as to the High Court only, the words are added 'and not subject to any appeal." It is unnecessary to consider the effect of these last words on the prerogative right of the King to admit appeals, - as we are concerned at present with the intention of Parliament in the Act; but it is worthy of notice that, in the Orders in Council reserving this prerogative right, the words used are "judgment or determination" (cf. Order in Council, 9th June 1860). Tt is also unnecessary to consider at present whether the parties who are heard, or who have an opportunity to be heard, before the High Court, are bound by the determination, as suggested by counsel-

for the shipping companies. It is enough to say that in the absence

XII. which is in accord with the first principles of justice - 'a man's rights are not to be bound by a decision in a proceeding 'which he had no opportunity of being heard (Cooper v. Wands- Board (1); Broom's Legal Maxims, 8th ed., pp. 91, 267; on Statutes, 6th ed., pp. 149 et seq.); and that in an controversy between parties, the determination under XII. would not support any plea of res judicata, Never- ess, the proceeding, the determination, is judicial, It is not cial in the sense of settling a specific litigation between but in the sense of pronouncing the law authoritatively. e determination would be treated as an authority in the Courts Australia until overruled either by the High Court or by the ivy Council, It is not necessary for a judicial proceeding that there should be opposing parties. I put during the argument the 'ase of an application to a Court by the committee of a lunatic as toresidence of the lnatic. There is also the case of an application forletters of administration, unopposed. Even if the application is 'noncontentious, there can be an appeal from a refusal on the part

the primary Judge (In re look (2) ). So in the case of an applica- tion for the renewal of a patent, &e.

'These considerations bring me to say something as to Chapter III. of the Constitution - * The Judicature." It is said that this Court, 182 Court, is forbidden by the Constitution to perform any functions "Which are not within " the judicial power of the Commonwealth," 'and that the function of determining the validity of an Act except between litigating parties is not within that judicial power. I 'famnot accept either proposition, To say that Blackacre shall be 'ested in A (and in A only) does not carry as a corollary that White- 'tere shall not be vested in A; to say that the judicial power of the Commonwealth shall be vested in the High Court (and other Federal Courts and such other Courts as Parliament invests with Federal ittisdiction - sec. 71 of Constitution) does not imply that no other jurisdiction, or power, shall be vested in the High Court or in the other Courts. 'This is surely obvious, on the mere form of words. Mere is a great deal of force in the argument, favoured by lawyers, F M1) 4 CB, (N.S.), 180, (2) 15 P.D., 132,

words to the contrary we must accept that meaning for H.C. or A.

that decisions of a Court where there is no active controversy be- tween interested parties are not so valuable as when there is such controversy ; and that, when a litigated case comes before the Court subsequently, the Court would approach it with prejudiced minds, But this argument is an argument of expediency, and is not for us, It may be that we shall have in the future attempts at preventive law as well as at preventive medicine ; and that, on a balance of expediencies, the law-makers may prefer judicial proceedings before acting, rather than to keep all judicial proceedings till after the doubtful step has been taken, The point is that the Constitution does not expressly forbid the vesting of other powers in this Court, and that there is no necessary implication to that effect. In the next place, I think that an application under Part XII. does come (if that is necessary) within the words of sec. 76, " matter atising under this Constitution, or involving its interpretation." Counsel for the State of Victoria says that "matter" in this contest means a "claim of right": but this definition is too broad, I think, in that it omits the idea of some curial proceeding; and too narrow, in that it assumes that there must be a contest between parties. It is not necessary that a "matter" should be between parties. I pass by the fact that in the Judiciary Act itself, " matter" includes any proceeding in a Court "whether between parties or not" ; for it may be urged that the Act was not in force at the time of the Constitution. But in the English Judicature Act 1873 the word "matter" is defined as "every proceeding in the Court not in a cause" ; and "cause" includes "any action, suit, or other original proceeding between a plaintiff and a defendant." This is the language of the Parliament which enacted our Constitution ; and the distine- tion between " causes" and "matters" or " suits " and " matters" was common in still earlier legislation (15 & 16 Vict. c. 80; 15 & 16 Vict. c. 86; General Orders of 1841). In the Oxford Dictionary the meaning of " matter," as used in law, is " something which is to be tried or proved." It may be that the connotation of words used in the Constitution may not be extended by Parliament; but surely not the denotation. The Constitution does not stereotype the denotation of words for all subsequent time. The States can create new matters. Any State may hereafter adopt the French

prodigue, under which a wife may apply for an interdict . Cor A.

extravagance on the part of her husband; and if such a !92!-

were adopted the High Court would have jurisdiction of the tw xe {or cause) if it involve in any way the interpretation of the 3°P!IA™r tio. What the State can do, the Commonwealth ean do Navioanox

m the ambit of its specific subjects; and if the Common.

Parliament see fit to create a new legal proceeding under "#7

41 (xxx1x.), that legal proceeding comes under the High Court

to decide matters involving the interpretation of the

But, in my opinion, the only real question necessary to decide reis the meaning of sec. 51 in its relation to sec. 61 of the Consti-

on. Hitherto, this Court has given the widest construction to xxxix. and to the words "with respect to" in the opening ds of sec. 51. In the Jumbunna Case (1) it was held that Par- nt could assist the operations of the Court of Conciliation, it had created under pl. xxxv., by providing for the regis- and incorporation of industrial associations. It is true, of that to create corporations is not to act judicially ; but by 31 of the Conciliation Act Parliament has authorized the Court Conciliation to state a case for the opinion of the High Court, nd has authorized the High Court to hear and determine it. This tion was held to be valid (Federated Engine-Drivers' and Fire- Association of Australasia v. Broken Hill Proprietary Co. (2) ). it gives the High Court judicial power which cannot be brought of the Constitution. The points of law need ot be points "arising under this Constitution, or involving its tation," &e. The case is stated by the President for his guidance, whether the parties to the conciliation proceedings him or not, and even though they may not (they often do discuss the points. Moreover, Parliament has, by sec. 21aa of Conciliation Act, given the High Court jurisdiction to decide as the existence of an industrial dispute, or "on any question of Arising in relation to the dispute . . . or to any award or 'of the Court." This legislation has also been held to be valid Engine-Drivers' and Firemen's Association of Australasia v.

Colonial Sugar Refining Co. (1)). Yet it gives judicial power which cannot be brought under Chapter III. of the Constitution at all, 'The High Court is enabled to decide questions which do not arise between parties asserting "existing claims of right" in a legal con- troversy or at all, The Court of Conciliation does not, either in its primary function of procuring agreement (conciliation) or in making awards (arbitration) determine existing rights: it rather is an instrument for creating rights. In both instances, there was no "matter" actual or possible until Parliament specially ereated it, "Matter" does not mean merely legal proceeding, but some legal proceeding is probably implied - not necessarily a proceeding where some immediate right, duty or liability is to be established by the determination of the Court; for under such a limited meaning the High Court could not decide as to the existence of an industrial dispute under sec. 2144.

Nor is the jurisdiction given to this Court to entertain and give a determination as to law in non-litigious matters anything startling ornovel, In the British Act which organized the Judicial Committee of the Privy Couneil (3 & 4 Will, IV. c. 41) His Majesty was empowered to refer to the Judicial Committee "for hearing or consideration" any matters (other than appeals, &e.) as His Majesty thought fit; and the Committee has to hear or consider the same, and advise His Majesty (sec. 4). It appears that the Judicial Committee, when acting under this section, does not make a pronouncement in a formal reasoned judgment, but merely advises His Majesty (Bentwicl's Privy Counil Practice, p. 241). As Lord Loreburn LC. said in Attorney-General for Ontario v. Attorney-General for Canada (2)), the Judicial Committee exercises most important judicial functions, yet it is bound to answer His Majesty under this section ; and there never has been any suggestion of inconvenience or impropriety. In Canada in several successive Acts the Government was enabled to put before the Supreme Court of Canada questions touching the validity of Dominion or Provincial legislation. In the Act of 1906 (sec. 6): "The opinion of the Court upon any such reference although advisory only shall for all purposes of appeal to His Majesty

in Council be treated as a final judgment of the said Court between parties." These words imply that for other purposes the opinion () 2 CLR, 103, (2) (912) Ac, 671.

to be treated as a res judicata between parties, and yet an appeal to the Judicial Committee therefrom. Many such appeals have heard, In this ease sec. 6 was held to be vi Ithough the it was used that it was an interference with the judicial

litigation with preconceived opinions. 'That, the Judicial Committee "sail, was a matter of policy for Parliament to consider. But for "the fact that in Canada the residuary powers of legislation belong to the Dominion, not to the Provinces, this case would be a direct 'suthority in favour of Part XII. of our Act, Why should the Canadian Court have jurisdiction to give an opinion that may be the subject of an appeal, and yet the Australian Court be incapable of giving a determination that is not subject to appeal? In both 'cases, there is no litigation between parties,

Itis true that in the United States the Supreme Court has stead- fastly refused to advise the Executive on its request. 'The principle has been recently stated and explained in United States v. Evans (1. In 1793 Washington, as President, sought to take the opinion of the Supreme Court as to various questions arising under treaties with France; but there was no response, Marshall C.J. thus speaks of the matter in his Life of Washington: "Considering 'themselves as merely constituting a legal tribunal for the decision of controversies brought before them in legal form, the Judges deemed it improper to enter into the fields of polities by declaring their opinions on questions not arising out of the case before them."" Bat it will be observed that the question put by Washington was a 'question under a treaty ; and, whatever the question was, it was assumed to be a question of polities, as to external relations - a matter for the Executive, or for Congress. No American case has been cited to us in which, under the Constitution of 1789, an Act 'of Congress has been held to be invalid which purported to give to the Supreme Court. jurisdiction to state the interpretation of the Constitution, or to pronounce as to the validity of an Act made as under the Constitution. Probably the difficulty in the way of such 4m Act is greater than under our Constitution ; because in the article of the United States Constitution as to judicial power the 'Words used are not so wide as in our Constitution. Here, the words (1) 213 US, 297.

• character of the Supreme Court, and that the Judges would approach '

H.C. or A. are "matters arising under this Constitution, or involving its inter- 1921. pretation " (sec. 76) ; in the United States the words are "all cases teas in law and equity arising under the Constitution." There must be

TOPICIARY in the United States, a case or a controversy, at law or in equity,

Navroartow between litigating parties. 'The position is very different.

"SS __'There is nothing in the utterances of the members of the Bench in Mies? Sate of South Australia v. State of Victoria (1) that conflicts with the view which I here express. There, the discussion was as to sec. 75 of the Constitution - " matters between States"; and the word "between " necessarily implies a litigious case or controversy. Tt was clear that the action could not be maintained unless there were such a ease or controversy ; and my difficulty was that the State of South Australia, as a mere donee of a power, had no cause of action.

To sum up: - Part XI. of the Judiciary Act purports to enable the High Court to exercise a judicial function, in aid of sec. 61 of the Constitution, 'This funetion is either within "the judicial power of the Commonwealth" referred to in see. 71 of the Con- stitution, oritis not. In my opinion, it is within that judicial power ; for it is the function of deciding a " matter arising under the Con- stitution, or involving its interpretation," within sec. 76. But even if it is not within sec. 76, there is nothing in the Constitution to prohibit Parliament from giving other functions to the High Court 'than the exercise of " the judicial power " referred to in Chapter IIL and we are not justified in implying such a prohibition,

The separation of the legislative, executive and judicial powers under the Constitution leaves these arms of the Commonwealth interdependent. In Australia executive Ministers must sit in the Legislature (see. 64) (not as in the United States) ; and Parliament can regulate the working of the judicial power. 'There is nothing in the separation of powers that necessarily involves that the High Court cannot be employed to aid the Executive - judicially, at all events.

I much regret to find myself differing from my learned colleagues, but T can see no sufficient ground for holding Part XII. of the Judiciary Act to be invalid.

for the Attorney-General for the Commonwealth, Gordon H: ©. oF A. , Commonwealth Crown Solicitor, es itor for the Newcastle and! Hunter River Steamship Co, and Ix me H. de Y. Scroggie. pp itor for the Attorney-General for Western Australia, F, L. NAWeaT1ox , Crown Solicitor for Western Australia, - Solicitor for the Australasian Institute of Marine Engineers and Sullivan Brothers. lcitors for the Attorney-General for Viet

See. 27 of the Trade Marks Act 1905-1012 provides that " Where each of Apri 2, 29

'several persons claims to be the proprietor of the same trade mark, or of early identical trade marks in respect of the same goods or deseription of nox 6 f00ds, and to be registered as such proprietor, the Registrar may refuse to "ag Ut register any of them until their rights have been determined by the Court, or St##k® 43. Itave been settled by agreement in a manner approved by him or (on appeal)

Had, that the power conferred by that section on the Registrar may be 'exercised at any time whether before or after the Registrar has, under sec. 33, 'Accepted the applications of the persons so claiming.

Hela, also, that in determining the question whether the marks are "nearly identical" within the meaning of see. 27, the inquiry is not whether the marks 'ae likely to be confused with one another or are calculated to deceive, but 'whether there is claimed by several persons one mark or what the statute treats as one mark,