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from which the majority judgment in the present case cites significant passages. It is worth noting that in the judgment of Gavan Duffy, C.J., and Starke, in that case a distinction is made between the union of legislative and executive power on the one hand and the union of judicial and other power on the other hand. "It does not follow that because the Constitution does not permit the judicial power of the Commonwealth to be vested etc." are the opening words of a passage in which the granting of a regulative power akin to a legislative power to a body other than Parliament itself was justified. Nor, if any further justification is sought than that of the text itself of the Constitution, would it be difficult to find a distinction The delegation of regulative power by the legislature to an executive body does not mean that the legislature has abdicated a power constitutionally vested in it. For the executive body is at all limes subject to the control of the legislature. On the other hand in a federal system the absolute independence of the Judiciary is the bulwark of the constitution against enoroachment whether by the legislature or by the executive. To vest in the same body and judicial power is to remove a vital Constitutional safeguard.
Reference at this Stage may conveniently be made to an illuminating case, In re Judiciary & Navigation Acts (1921) 29 C.L.R. 257. That Act purported to give the Court jurisdiction to hear and determine any question of law as to the validity of a Federal law which the Governor General might refer for hearing and determination and to make the determination final and conclusive and subject to no appeal. The Act was held to be invalid. The jurisdiction purported to be given was treated as judicial power but as a judicial power falling outside the judicial power which alone could under Chapter III of the Constitution be conferred upon a Court. It is, as is pointed out in the majority judgment in the present case, at least a question whether any judicial power in a real sense was conferred by the Act: for it might truly be said that what the Governor General was empowered to refer was rather an academic question than a justiciable issue. But it was treated as judicial power and upon that footing the Act was held invalid. The High Court justly observes that it would be strange indeed if the Parliament was incompetent to vest in the Judicature judicial power outside the provisions of Chapter III but competent to vest in it executive or other powers. Would the result, it might be asked, have been different, if the High Court in the case cited had taken the alternative view that the Act does not purport to confer judicial power? It is possible that the case may have a deeper significance. For it has by many been thought an unwise practice to try to anticipate judicial decisions extra-judicially by obtaining the opinion or advice of the Judges, the reason being that it is regarded as tending to sap their independence and impartiality. More serious objection may for the same reason be taken to vesting in them powers which if exercised by another would be open to challenge on all the grounds that are available to a citizen who thinks his rights have been infringed. For it is their own executive act which they may be invited judicially to examine.
These considerations lead directly to a question which is of the utmost importance because because it has a close bearing upon the dissentient judgment of Mr. Justice Williams. If the judicial power can (contrary to their Lordships' opinions) be united in one body with other powers beyond those prescribed by section 51 (xxxix), with what powers can it be so united? There have no doubt from time to time been judicial statements that such union is possible. In Dignan's case for example Evatt, J., said in general terms that a Court set up by the Federal Parliament might exercise non-judicial function. In other cases it has been suggested that the union is possible so long as the power joined to the judicial power is not "incompatible" or "inconsistent" with it: see for example in the judgment of Latham, C.J., in The King v. Federal Court of Bankruptcy Ex Parte Lowenstein, 59 C.L.R. 556 at page 556. But in the present case it became necessary to face the question squarely and ask what was the test of legitimate union. It fell to Mr Menzies, who argued the case
