Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan Informant [1931] HCA 34;

Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan Informant [1931] HCA 34; - HCA 1931 case summary — Zoe

[8]

Various reasons were assigned in the orders nisi for these contentions, which it is unnecessary to set forth at length. The attack upon the Act itself - the subject of the first ground of the orders to review - was based upon the American constitutional doctrine that "no legislative body can delegate to another department of the Government, or to any other authority, the power, either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high prerogative has been entrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it" (Cooley, Principles of Constitutional Law, 3rd ed., p. 111). Even in America, this principle does not preclude conferring local powers of government upon local authorities, nor the giving to the Territories a general authority to legislate on their own affairs (ibid., p. 111). It was denied that the Transport Workers Act 1928-1929 impinged upon the doctrine, because in that Act the Parliament confined the regulating power to certain specific matters within the ambit of the trade and commerce power, and accordingly merely exercised its own legislative power within that ambit, and did not delegate any part of it. Assuming, however, that the Act does impinge upon the doctrine, still such a restriction has never been implied in English law from the division of powers between the several departments of government. As Higgins J. said in Baxter v Ah Way[1], "the Federal Parliament has, within its ambit, full power to frame its laws in any fashion, using any agent, any agency, any machinery that in its wisdom it thinks fit, for the peace, order, and good government" of the Commonwealth. And the decisions of this Court have been uniformly to the same effect (Roche v Kronheimer[2] and cases there cited). It does not follow that, because the Constitution does not permit the judicial power of the Commonwealth to be vested in any tribunal other than the High Court and other Federal Courts, therefore the granting or conferring of regulative powers upon bodies other than Parliament itself is prohibited. Legislative power is very different in character from judicial power: the general authority of the Parliament of the Commonwealth to make laws upon specific subjects at discretion bears no resemblance to the judicial power. Indeed, unless this view is correct, and if there has been a delegation of legislative power, the judgments in the Huddart Parker Case[3] and in Dignan's Case[4] overlooked an obvious point, and the cases were wrongly decided.

[17]

Sec. 3 of the Transport Workers Act 1928-1929 provides that the Governor-General may make regulations, not inconsistent with that Act, which, notwithstanding anything in any other Act but subject to the Acts Interpretation Act 1901-1918 and the Acts Interpretation Act 1904-1916, shall have the force of law, with respect to the employment of transport workers, and in particular for regulating the engagement, service and discharge of transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers, and for the protection of transport workers. The expression "transport worker" is defined to mean a person offering for or engaged in work in or in connection with the provision of services in the transport of persons or goods in relation to trade or commerce by sea with other countries or among the States. A transport worker is called a "waterside worker" if he offers or is engaged for work in the loading or unloading of ships as to cargo, coal or oil fuel, and the expression includes a person working in or alongside the ship in connection with the direction or checking of the work of other waterside workers (sec. 2). In substance, sub-reg. 1 of clause 3 of the regulation under which the defendants were convicted provides that at the ports in which the provisions of the Act for the licensing of waterside workers are in force priority shall be given in employment, engagement or picking-up for work as a waterside worker to those waterside workers who are available and are members of an organization known as the Waterside Workers Federation of Australia - an organization bound by an award of the Commonwealth Court of Conciliation and Arbitration applicable to employment for that work. Sub-reg. 2 provides that any person who gives priority in employment, engagement or picking-up in or for that work except in accordance with the previous sub-regulation shall be guilty of an offence. Sec. 3 of the Transport Workers Act assumes to commit to the Executive Government an extensive power to make regulations which, notwithstanding anything in any other Act of Parliament, shall have the force of law. The validity of this provision is now attacked upon the ground that it is an attempt to grant to the Executive a portion of the legislative power vested by the Constitution in the Parliament, which is inconsistent with the distribution made by the Constitution of legislative, executive and judicial powers. Sec. 1 of the Constitution provides that the legislative power of the Commonwealth shall be vested in a Federal Parliament which shall consist of the Sovereign, a Senate, and a House of Representatives; sec. 61, that the executive power of the Commonwealth is vested in the Sovereign and is exercisable by the Governor-General as the Sovereign's representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth; sec. 71, 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 Parliament creates and in such other Courts as it invests with Federal jurisdiction. These provisions, both in substance and in arrangement, closely follow the American model upon which they were framed. The Constitution of the United States provides: - Art. I., sec. 1: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Art. II., sec. 1: "The executive power shall be vested in a President of the United States"; sec. 3: "he shall take care that the laws be faithfully executed." Art. III., sec. 1: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

[19]

The Constitution had been in operation hardly two years before the Judges took their stand upon this separation of powers and firmly declined to execute an act of Congress regulating claims to invalid pensions which, in their opinion, sought to give them duties outside judicial power. Iredell J., in his remonstrance to the President, submitted: "That the legislative, executive and judicial departments, are each formed in a separate and independent manner; and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority." Jay C.J., Cushing, Wilson and Blair JJ. relied upon the same doctrine in their addresses to the President (Hayburn's Case[17]). From this time the distribution of powers always received in the Supreme Court of the United States an interpretation which has ascribed to each department of government an incapacity to receive or to exert any power which according to its essential character was vested by the Constitution in another. "The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others" (Cooley's Constitutional Limitations, 7th ed., ch. v., p. 126). Thus Miller J., in Kilbourn v Thompson[18], speaking for the Supreme Court, said: - "It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers entrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other."

[21]

But it is one thing to adopt and enunciate a basic rule involving a classification and distribution of powers of such an order, and it is another to face and overcome the logical difficulties of defining the power of each organ of government, and the practical and political consequences of an inflexible application of their delimitation. In the first place it was apparent that many things might be done in the course of, or as ancillary to, the execution of one power which might also be done in virtue of another. For instance, the ascertainment of a state of facts upon testimony of witnesses may be incident to some executive action and is not confined to the judicial power (Willoughby on the Constitution of the United States, 2nd ed., vol. iii., p. 1653). Again the power to make rules of procedure may be reposed in the Judiciary or exercised by the Legislature (Wayman v Southard[21]). Further, although it may be true that the formulation of enforceable rules of conduct for the subject or the citizen, because they are considered expedient, is the very characteristic of law-making, yet it has always been found difficult or impossible to deny to the Executive, as a proper incident of its functions, authority to require the subject or the citizen to pursue a course of action which has been determined for him by the exercise of an administrative discretion. But in what does the distinction lie between a law of Congress requiring compliance with directions upon some specified subject which the administration thinks proper to give, and a law investing the administration with authority to legislate upon the same subject? The answer which the decisions of the Supreme Court of the United States supply to this question is formulated in the opinion of that Court delivered by Taft C.J. in Hampton & Co v United States[22]: - "It is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial Branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination. The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations... Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive, or, as often happens in matters of State legislation, it may be left to a popular vote of the residents of a district to be affected by the legislation." He then quotes an often cited passage of another judgment: - "The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

[25]

In support of the rule that Congress cannot invest another organ of government with legislative power, a second doctrine is relied upon in America, but it has no application to the Australian Constitution. Because the powers of government are considered to be derived from the authority of the people of the Union, no agency to whom the people have confided a power may delegate its exercise. "The well-known maxim Delegata potestas non potest delegari, applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private laws" (per Taft C.J. in Hampton & Co v United States[25]). No similar doctrine has existed in respect of British Colonial Legislatures whether erected in virtue of the prerogative or by Imperial statute. "A confirmed act of the local Legislature ... whether in a settled or a conquered colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial Parliament" (per Willes J. delivering the judgment of the Exchequer Chamber in Phillips v Eyre[26]). It is true that the Latin maxim has sometimes been relied upon in support of attempts to invalidate legislation which have come before the Privy Council, and their Lordships have felt it necessary to emphasize the plenitude and supremacy of the powers with which the Legislatures of the Dominions of the Crown were invested. R. v Burah[27], Hodge v The Queen[28] and Powell v Apollo Candle Co[29] are authorities frequently cited in this Court in insisting, as its members repeatedly have done, upon the plenary and absolute nature of the power of the Parliament of the Commonwealth upon the subjects assigned to it. It is important to observe that in America the intrusion of the doctrines of agency into constitutional interpretation has in no way obscured the operation of the separation of powers. The prohibition of delegation which arises from the conception of agency, on the one hand disables the Legislatures from granting legislative power not only to the Executive but to bodies outside the Federal government, e.g., State governments, and, on the other hand, is in no way responsible for the incapacity of Congress, under the guise of legislation, to exercise judicial power, or to confer it upon any bodies outside the judicial system or, as has lately been decided, to fetter the discretion to remove officers of State which is contained in the executive power of the President (Myers v United States[30]). These are all consequences of the separation of powers and do not derive any additional support from the American principle of non-delegation. It should also be noticed that, in the opinion of the Judicial Committee, a general power of legislation belonging to a legislature constituted under a rigid constitution does not enable it by any form of enactment to create and arm with general legislative authority a new legislative power not created or authorized by the instrument by which it is established. (R. v Burah[31]; see also In re Initiative and Referendum Act[32]).

[26]

When they adopted the distribution of powers which they found in the Constitution of the United States, the framers of the Constitution of the Commonwealth of Australia were, of course, by no means unaware of the significance given to the distribution and of the consequences flowing from it. But an independent consideration of the provisions of the Commonwealth Constitution unaided by any such knowledge cannot but suggest that it was intended to confine to each of the three departments of government the exercise of the power with which it is invested by the Constitution, the doing of that which can be done in virtue only of the possession of such a power. The arrangement of the Constitution and the emphatic words in which the three powers are vested by secs. 1, 61 and 71 combine with the careful and elaborate provisions constituting or defining the respositories of the respective powers to provide evidence of the intention with which the powers were apportioned and the organs of government separated and described. In New South Wales v Commonwealth[33] an enactment purporting to constitute the Inter-State Commission a Court with judicial powers was held invalid, notwithstanding sec. 102 of the Constitution, because it amounted to an attempt to confer part of the judicial power of the Commonwealth upon a body not within sec. 71. Isaacs J., as he then was, said[34]: - "When the fundamental principle of the separation of powers as marked out in the Australian Constitution is observed and borne in mind, it relieves the question of much of its obscurity." After referring to and considering the provisions of Chapter II. and of Chapter III., which he described as exhausting the Judicature and containing a distinct command that whatever judicial power is to be exerted in the name of the Commonwealth must be exercised by the Courts it defines, he concluded that it would require, in view of the careful delimitation he had mentioned, very explicit and unmistakable words to undo the effect of the dominant principle of demarcation. Rich J. said[35]: - "The Constitution draws a clear distinction - well known in all British communities - between the legislative, executive and judicial functions of government of the Commonwealth. The legislative power is, by sec. 1, vested in Parliament, the constitution and powers of which are carefully defined in Chapter I. Chapter II. deals with the Executive Government, and the executive power is vested in the Queen, and is made exercisable by the Governor-General as provided by sec. 61 and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Chapter III. deals with the Judiciary, and contains the most ample and meticulous provisions as to the tribunals which shall exercise such judicial powers and as to the subject matter of their jurisdiction." Powers J. agreed[36] with the reasons of Isaacs J. as well as those of Griffith C.J., who dwelt rather upon the provisions of Chapter III. In Waterside Workers' Federation of Australia v J. W. Alexander Ltd[37] the members of the Court all either assumed or decided that no judicial power could be given except to Courts within Chapter III., but no express reference was made to the general distribution of powers. In In re Judiciary and Navigation Acts[38] it was decided that no judicial function can be imposed upon the High Court which falls outside the jurisdiction described in Chapter III. In the course of their judgment, Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. said[39]: - "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 classes - legislative, executive and judicial (New South Wales v Commonwealth6(1915) 20 C.L.R., at p. 88. ). In each case the Constitution first grants the power and then delimits" its exercise (Alexander's Case[41]). In British Imperial Oil Co v Federal Commissioner of Taxation[42] authority was again denied to the Parliament to invest any part of the judicial power in anything but a Court within Chapter III.

[31]

When, at the beginning of this year, a regulation made under sec. 3 of the Transport Workers Act came before us in Huddart Parker Ltd v Commonwealth[58], the attack upon the validity of the section was based rather upon the scope of the commerce power, and but little reliance was placed upon the legislative character of the power conferred upon the Executive. But in the judgments of Starke J. and of Evatt J., and in my own judgment, with which Rich J. expressed his agreement, the question was stated whether it was within the power of the Parliament to make a law which, in the language of Starke J.[59] "prescribes no rule in relation to such employment: it remits the whole matter to the regulation of the Governor in Council"; and the answer given by each of us was that Roche v Kronheimer[60] decided that it is within the power of Parliament to do so. A reconsideration of the matter has confirmed my opinion that the judgment of the Court in that case does so mean to decide. It may be true that the nature of the case and the authorities cited as the ground of the decision are consistent with the explanation that it did no more than illustrate the potency of the defence power. But I think the judgment really meant that the time had passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legislative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character. I, therefore, retain the opinion which I expressed in the earlier case[61] that Roche v Kronheimer[62] did decide that a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law. This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority. For instance, its relevance is undeniable to the particular problem suggested in In re Initiative and Referendum Act[63]. The interpretation by this Court of Chapter III. of the Constitution and that of Chapters I. and II. which has now been adopted in view of Roche v Kronheimer, may appear to involve an inconsistency or, at least, an asymmetry, and there are not wanting those who think a course of judicial decision no sufficient warrant for anything so unsatisfactory. But the explanation should be sought not in a want of uniformity in the application to the different organs of government of the consequences of the division of powers among them, but in the ascertainment of the nature of the power which that division prevents the Legislature from handing over. It may be acknowledged that the manner in which the Constitution accomplished the separation of powers does logically or theoretically make the Parliament the exclusive repositary of the legislative power of the Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute (Willingale v Norris[64]) and the rule that upon the repeal of the statute, the regulation fails (Watson v Winch[65]). Major consequences are suggested by the emphasis laid in Powell's Case[66] and in Hodge's Case[67] upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity. But, whatever may be its rationale, we should now adhere to the interpretation which results from the decision of Roche v Kronheimer[68].

[32]

The conclusion that the Constitution does not forbid the statutory authorization of the Executive to make a law provides an answer to another of the arguments relied upon by the appellants. Let it be assumed that the Commonwealth Conciliation and Arbitration Act did, as they assert, operate upon a determination of the Court of Conciliation and Arbitration so as to establish rights in the appellants or any of them, which the Waterside Employment Regulations would override or annul. Sec. 3 of the Transport Workers Act gives a regulation the force of law notwithstanding anything in any other law, and, if otherwise valid, it must prevail over the rights so established. The validity otherwise of the regulation is in fact impeached upon three grounds, namely, that sec. 3 is not a law with respect to inter-State and external commerce; that even if it is, the regulation is not a regulation with respect to such commerce; and that those who made it actually had no purpose connected with such commerce in view. In Huddart Parker Ltd v Commonwealth[69] I gave my reasons for thinking that sec. 15A of the Acts Interpretation Act 1901-1930 made it unnecessary to consider the validity of more of sec. 3 than would authorize the regulation of the choice of persons who might do the work of loading and discharging inter-State and overseas ships; and to this opinion I adhere. So much of the section as would authorize the regulation of the choice of such persons appeared to me to be within the commerce power, because the determination of the persons who should take part in work forming part of inter-State and external commerce seemed to me to be directly within the subject matter of sec. 51 (I.) of the Constitution. The fact that the determination of persons who should do such work was accomplished by means of a control exercised over their employment or engagement did not, in my view, deprive the law of its character, although the circumstance that it affected the relations of intending employer and employee did not strengthen its relevance to the commerce power. I have seen no reason to alter these opinions. The regulation then under consideration had, I think, no greater and no less relation to trade and commerce with other countries and among the States than that now under consideration. The terms of each provide unmistakable evidence of the industrial consequences which their operation was meant to bring about. The fact that the Executive has made another similar regulation as often as the Senate has disallowed that which preceded it, was relied upon as confirming the inference that it was not the regulation of trade and commerce but of industrial relations that was aimed at. No confirmation of the motives animating the makers of the regulation was or is necessary. The only question was whether, notwithstanding the nature of these motives, the regulation did operate upon a matter forming an actual part of inter-State and overseas commerce. I think an enactment which does operate directly upon an activity or transaction forming a part of such commerce does not cease to be a law in respect to trade and commerce with other countries and among the States because it may equally be referred to some other legislative category. The difficulty must always be great in deciding whether such an enactment is a law with respect to such commerce when it appears from its very terms that the motives which guided the lawgivers were connected with matters belonging to the other category. But I do not think the words "with respect to" in sec. 51 are directed so much to the purpose of the law as to its relevance and operation. Perhaps in this case the real question turns upon the application of the criterion they describe. I remain of the opinion that the regulation "directly controls the selection of agents for the doing of work forming part of such commerce," and that, for this reason, it is a law with respect to such commerce[70]. But it is now suggested that in fact the actual exercise of the discretion by the Executive was clearly not directed to the subject of trade and commerce. This contention too is answered, I think, by the legislative character of the function entrusted to the Governor-General in Council. His discretionary power over the subject is as unqualified as that of a legislature, and the actual grounds upon which it is exercised are, therefore, immaterial.

[39]

But what is to be done in such a case as this, where the decision that the defendants should be convicted is brought up by appeal to be considered at a time when they no longer would be liable to conviction? If the informations preferred against the defendants came on now to be heard for the first time, the charge must fail. Does the appeal to this Court bring up the proceedings so that the charge may be enquired into anew and it may be determined here whether now, at the time of dealing with the appeal, the defendants are under a present liability to conviction; or does the appeal entitle the defendants to no more than a reconsideration of the question whether, at the time of their conviction, they were actually under the liability to which they were adjudged? The appeal to this Court is given by sec. 73 of the Constitution, which provides that "the High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences ... (ii) Of any ... Court exercising Federal jurisdiction." It is governed by the provisions of sec. 39(2)(b) of the Judiciary Act 1903-1927 and Section IV. of the Appeal Rules. The procedure which determines the mode of appeal does not affect the nature of the appeal itself. It is established that upon such an appeal, it is for the Court to form its own judgment of the facts so far as it is able to do so (Bell v Stewart[75]). For this reason an appeal to this Court is often said to be by way of rehearing. "On an appeal strictly so called, such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the Court of first instance" (per Jessel M.R., Quilter v Mapleson[76]). In the English Court of Appeal "all appeals are by way of rehearing, that is by trial over again, on the evidence used in the Court below; but there is special power to receive further evidence" (per Jessel M.R., In re Chennell; Jones v Chennell[77]). Accordingly, that Court must decide an appeal by applying to the circumstances as they exist, when the appeal is dealt with, the law which then operates to determine the rights and liabilities of the parties (Attorney-General v Birmingham, Tame, and Rea District Drainage Board[78]; Ex parte Thomas[79]; and compare Borthwick v Elderslie Steamship Co [No. 2][80]; Robinson & Co v The King[81]). If, by a retrospective change in the law, the rights and obligations of the parties come to depend upon facts which have not been ascertained, the Court of Appeal takes the necessary steps to have the dispute between the parties decided according to the law presently in force, and it may set aside the order appealed against, and remit the cause to be reheard so that the rights of the parties may be determined as at the date of rehearing (Stovin v. Fairbrass[82]).

[41]

When "the Courts which were manifold" were united "in divers divisions of one," and the judgments of the one Court were made subject to the same review whether the obligations they enforced were legal or equitable, the jurisdiction and the power of the new Court of Appeal were conferred upon it in terms derived from Chancery. The provisions by which its functions were defined and described could scarcely be mistaken. The remedy they gave to the unsuccessful litigant was a rehearing of his cause of the kind illustrated by the cases since decided. But such a remedy is not an appeal in the proper sense. "An appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below" (per Lord Westbury L.C., Attorney-General v Sillem[84]). Upon an appeal to the Privy Council, the question considered is whether the judgment complained of was right when given (Ponnamma v Arumogam[85]; Donegani v Donegani[86]). "Without limiting the extent of His Majesty's prerogative, their Lordships can safely say that it is not the practice of this Board to enter any other appeal than one strictly so called, in which the question is whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it" (per Lord Davey in Ponnamma v Arumogam[87]). The analogy of the English Court of Appeal is therefore not a sufficient foundation for holding that the appeal to this Court involves a rehearing of the cause as at the date of the appeal. In conferring jurisdiction upon this Court, the Constitution clearly discriminates between original and appellate jurisdiction. The simple language in which the appellate power is conferred, although implying the fullest authority to ascertain whether the judgment below ought, or ought not, to have been given, contains nothing to suggest that this Court is to go beyond the jurisdiction or capacity of the Court appealed from. To do complete justice between the parties litigant, as, according to Lord Atkinson, the Court of Appeal ought to do even though it should involve the making of an order which the Court below had not jurisdiction or power to make, smacks rather of original jurisdiction (Banbury v Bank of Montreal[88]). The course of authority in this Court tends rather against such a wide view of the nature of the appeal. The Court has always refused to hear fresh evidence, and the power to do so was questioned early (New Lambton Land and Coal Co v London Bank of Australia Ltd[89]). In Ronald v Harper[90], upon an appeal from the refusal by a Supreme Court of a new trial motion, the appellant sought to rely upon the fact that since the refusal it had been established that the verdict had been fraudulently obtained by false evidence. He was not permitted to do so, and O'Connor J. said[91]: - "It is abundantly clear from sec. 73 of the Constitution that the High Court can review a judgment of a State Court only by way of appeal. Acting on that view the Commonwealth Legislature, in equipping this Court for the discharge of its duty, has recognized its authority to act in respect of the judgments of State Courts exercising State jurisdiction in no other way than by appeal. To determine as a Court of first instance the fact upon which these new grounds of appeal rest would be obviously to exceed the jurisdiction vested in this Court by the Constitution."

[61]

The Constitution of the Commonwealth vests, or treats as vested, the legislative power in the Parliament, the executive power in the Crown, and the judicial power in certain Courts referred to in Chapter III. (secs. 1, 61 and 71). This classification relates solely to the powers of the Commonwealth as such, and is not concerned with the division of the powers of legislation between the Commonwealth and State Parliaments. Now it is often said that the result of the classification is to set up a "separation" of Commonwealth powers, mutually exclusive in character, with each power exercisable by its own appropriate organ and by no other authority whatever. But it is not possible to predicate of all lawful Commonwealth action that it must be an exercise either of legislative, or judicial or executive functions. The British tradition that judicial functionaries are or should be free from any interference on the part of the Legislature or the Executive, has resulted in a special tendency to resist any serious encroachment upon the field of judicial action by agencies of the Executive Government. None the less, it has been finally determined that, under the Australian Constitution, duties and functions resembling those of a strictly judicial character may lawfully be vested in administrative tribunals (Shell Co of Australia v Federal Commissioner of Taxation[107]). In that case Isaacs J. (as he then was) closely examined certain aspects of the general question now before us. He referred to the fact that there are "many functions which are either inconsistent with strict judicial action ... or are consistent with either strict judicial or executive action" (Federal Commissioner of Taxation v Munro[108]). He said[109] that "the very same process may thus, in some instances, be either judicial or executive"; and, dealing in more general terms with the doctrine of separation of powers, he said[110]: - "The Constitution, it is true, has broadly and, to a certain extent, imperatively separated the three great branches of government, and has assigned to each, by its own authority, the appropriate organ. But the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution."

At a glance

Court

Decision date

Before

Source

Judgment (206 paragraphs)

Victorian Stevedoring & General Contracting Company Pty Ltd v Dignan Informant [1931] HCA 34; (1931) 46 CLR 73 (2 November 1931)

Parties

Legislation Cited (8)

Cases Cited (1)