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the model of the American Constitution. By section I which is in Chapter I "The Parliament" it is provided that the legislative power of the Commonwealth shall be vested in a Federal Parliament and the following 59 sections deal broadly with its composition and powers. It is only necessary at this stage to refer to section 51 which provides that the Parliament shall, subject to the Constitution have power to make Jaws for the peace order and good government of the Commonwealth with respect to (amongst other matters) "(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." By section 61, which is the first section of Chapter II "The Executive Government", it is provided that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor General as the representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. The following nine sections of Chapter II deal with the exercise of executive power. By section 71 which is the first section of Chapter III "The Judicature" it is provided 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. The following nine sections of Chapter III deal with the appointment of Judges, their tenure of office and remuneration, the appellate jurisdiction of High Court, appeals to the Queen in Council, the original and additional jurisdiction of the High Court, the power of the Parliament to define jurisdiction and certain other matters.
Such is the bare structure of the Constitution and it will be necessary to look more closely into some of its provisions. 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 section 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 Chapter 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 Chapter III Io some other source of power.
Yet this general proposition is subject to a qualification and it is a qualification which powerfully supports the proposition. For in section 51, the final matters in respect of which the Parliament is empowered to make laws are found in placitum (xxxix) "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 or in the Federal Judicature or in any Department or officer of the Commonwealth."
This placitum looks forward to the vesting of power in the Federal Judicature which is found in Chapter III: it assumes such vesting and empowers the Parliament to make laws in of matters incidental to the execution of such power. The conferment of such a limited power of legislation in section 51 it very clear that it is in Chapter III alone that a larger power is contained. There could not well be a clearer case for the application of the maxim "Expressio unius exclusio alterius".
The argument so far appears to lead irresistibly to the conclusion that it is only in Chapter III that legislative authority is to be found to vest the judicial power of the Commonwealth. If so, it is to the provisions of that that one must look to find authority for the vesting in a Court powers and functions which are not judicial or to vest in a body of persons exercising non-judicial functions part of the judicial power
