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that (as was said in the majority judgment) the function of an industrial arbitrator is completely outside of the realm of judicial power and is of a different order. As was said by Issacs and Rich, J.J. in Alexander's case (25 C.L.R. at 463) "… the essential difference is that the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities 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 to enforce what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other." And as was said by Mr. Justice Taylor in his dissentient judgment in the present case "It is of course much too late in the day to contend that 'Arbitral' functions of the nature created by the Conciliation and Arbitration Act can ever constitute any part of the judicial power of the Commonwealth." With this statement the learned Solicitor General for the Commonwealth expressed his agreement. It is necessary throughout to bear in mind that the words "arbitration" and "arbitral functions" refer exclusively to the arbitration and arbitral functions for which the Act provides. The same words in another context may mean something closely resembling a judicial process.
It must be stated here that in their formal Case the respondents objected to the competence of this appeal on the ground that it raised what has become familiarly known as an inter se question and therefore fell within section 74 of the Constitution. The argument in favour of the objection was fully stated in the case and their Lordships gave the question long consideration. They have however been satisfied that the objection is not a valid one and will state their reasons after they have dealt with the case on its merits.
The problem can now be stated. Is it permissible under the Constitution of the Commonwealth of Australia for the Parliament to enact that upon one body of persons, call it tribunal or Court, arbitral functions and judicial functions shall be together conferred? The problem can be solved only by an examination of the Constitution itself. The expression "arbitral functions" is here used to describe compendiously the functions exercisable by the Court other than its judicial functions.
The Constitution was enacted and established by an Act of the Imperial Parliament (63 & 64 Vic. Cap. 12). The Act recited that the people of New South Wales. Victoria. South Australia, Queensland and Tasmania had agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom and under the Constitution thereby established and by section 9 enacted that the Constitution of the Commonwealth should be as therein followed. Some weight has been attached to the fact that the Act was an Imperial Statute but it is difficult to see how this can affect its interpretation. It can safely be assumed (and it is the historical fact) that in convention after convention in Australia the terms of the Constitution were hammered out by members of the several States who were profoundly conversant with the political systems of the United Kingdom and the United States and were in particular well aware both of the advantages of the separation of powers in a federal system and of the danger of a too rigid adherence to that theory. It is with this background that the Constitution must be interpreted. and their Lordships find it equally easy to accept as general propositions the statement of the appellants that, whereas under the United States Constitution there is a complete separation of powers, in the Australian Constitution which in some aspects follows the British model, the doctrine is not strictly followed, and on the other hand the statement of the respondents founded upon the highest authority that "the Constitution 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." Both these statements are true but both are subject to the qualifications which are to be found in the Constitution itself.
That the Constitution is based upon a separation of the functions of Government is clearly to be seen in its structure, which closely follows
