The object of this article is not to discuss in detail any of the questions of law which have arisen under the Matrimonial Causes Act 1959 (Cth), but merely to review in a fairly general way the manner in which the Act has operated since it came into force in February, 1961. My remarks will necessarily be confined, in the main, to experience in New South Wales since that is the State in which I have seen the Act operating but presumably the experience of Judges and practitioners in this State will not be greatly dissimilar from that of their opposite numbers in the other States of the Commonwealth. In one respect, however, the position of legal practitioners in this State is unique for New South Wales alone of the States still clings obstinately to the pre-Judicature Acts method of pleading.

For centuries the superior courts have wielded a judicial big stick labelled ‘jurisdictional error’ in order to control and supervise the activities of administrators and inferior tribunals; moreover the stick has been brandished in the face of parliaments which have indicated fairly clearly that they intended the particular inferior body to be free of judicial interference. The doctrine of review for jurisdictional error is well established; but there is widespread criticism of its operation. The distinction between findings of inferior bodies which are ‘collateral’ to the merits and thus reviewable and those which are not, a distinction which is basic to the doctrine, has been described as one of the ‘apparently meaningless categories’ of legal reference. Particularly effective and persistent criticism has been mounted by D. M. Gordon. In his view the distinction between jurisdictional facts and other facts cannot be maintained. He is completely opposed to any acceptance of the idea that the courts should be free to manipulate jurisdictional error to control the activities of inferior bodies on policy grounds alone; arbitrariness and uncertainty have no place in the law of judicial review.

The Australian Founding Fathers paid no attention at all to the position of the Australian aboriginal race, and the only two references to aborigines in the Constitution are highly negative in character.They are:

s. 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

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(xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

s. 127. In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

It seems generally admitted that the term ‘police power’ was first used in 1827 by Marshall C.J. in Brown v. Maryland. However the concept which underlay this term was not new. References to ‘regulations of internal police’, ‘matters of police’ etc. are found in the writings of such eminent eighteenth century authors as Montesquieu, Blackstone, and Vattel. These terms found an early use in newly independent America.

‘Natural justice’ is one of the key concepts in our legal system. The concept has been employed to ensure fair adjudication, not only by courts in the strict sense, but also by a vast range of administrative tribunals, bodies and officials that have power to affect the rights of individuals.

‘Natural justice’, to English and Australian lawyers, comprises two basic rules: the right to be heard (audi alterarn partern, the hearing rule) and the principle of fairness or impartiality (nerno debet esse judex in sua propria causa, the bias rule). These are ‘the essential characteristics of what is often called natural justice. They are the twin pillars supporting it’.

Thomas Reed Powell once commented that it is just as well that‘ the law is full of collateral doctrines and devices that keep it from behaving as badly as it sometimes talks ’. Few areas of the law provide a better example of his point than does that frequently neglected area of constitutional law which is concerned with the legal character of acts performed under an unconstitutional statute. The traditional doctrine is that such a statute is an utter nullity. Perhaps the most famous statement of this doctrine is to be found in Norton v. Shelby County where Field J. stated that an unconstitutional statute ‘confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed’. Or as a Chief Justice of the High Court of Australia once put it: ‘A pretended law made in excess of power is not and never has been a law at all . . . it is invalid ab initio’.

The many problems relating to Commonwealth power to make laws for a Territory have arisen because the power itself was a constitutional afterthought. The late Professor Ross Anderson described the Commonwealth of Australia as ‘the child of as hard-headed a mariage de convenance as was ever arranged in the salons of France ’. The marriage was, however, between the self-governing colonies which later became the States. Those who arranged the marriage were concerned primarily with the health and prosperity of the parties to, and the issue of, the union. Whether they were in favour of granting large powers to the Commonwealth or were staunch believers in ‘State Rights’ or whether they were for or against Federation, the chief issue was whether and to what extent each of the colonies should voluntarily reduce its own governmental power by giving some of it to a new self-governing colony which would in area and population embrace all the existing colonies.