Viant v Viant [1955] HCA 40

H. C. or A.

1955-1956. Sie THE QUEEN uv. Korey ; EX PARTE BorEr- MAKERS' Society OF AUSTRALIA.

Taylor J.

HIGH COURT (1955-1956.

possessed over disputes confined to its own borders" (1). Much the same thing was said by O'Connor J. in the same case (2).

These observations, which are by no means conclusive of the question in this case, do however serve to indicate the special character of the arbitral functions of the Commonwealth Court of Conciliation and Arbitration. They bear little, if any, resemblance to executive or legislative functions as generally conceived; on the contrary, both in their nature and exercise they present a number of features which are characteristic of judicial functions. These considerations, coupled with the fact that the combination in one tribunal of both arbitral and limited judicial authority is and has been for over half a century a well-recognized concept, induce me to think that, unless there is to be found in the Constitu- tion any clear provision or implication which denies to the legislature the right to combine these two functions in a court constituted under ss. 71 and 77 (i.), the prosecutor's submissions must fail. While I am conscious of the weight of the arguments advanced by the prosecutor they have failed to convince me that there is to be found in the Constitution any implication which, in the face of the special character of the power conferred by par. (xxxv.), could so operate. Accordingly I am of the opinion that the order nisi should be discharged.

Order absolute for a writ of prohibition prohibiting further proceedings upon the order dated 31st May 1955 and the order dated 28th June 1955 made by the Commonwealth Court of Conciliation and Arbitration. The respondent the Metal Trades Employers' Association to pay the prose- cutor's costs.