860 THE FEDERATIONS AND THE UNION [parr 1v
the form of words employed did not indicate that the Parliamentary
 exception was intended to be as wide as the constitutional
 grant, and consequently the power to prohibit
for want or excess of jurisdiction remained.
On the main question the opinion of the Chief Justice!
was as follows. The questions at issue were, in the first
place, that the constitution of the Court was not such as was
authorized by the power given in the Constitution to make
laws with respect to conciliation and arbitration for the prevention
 and settlement of industrial disputes, and secondly,
that several provisions of the Act itself, notably that relating
to the common rule, were not within the power granted,
and that those provisions were so intimately bound up with
the rest of the Act that if they were eliminated the rest of
the Act would have a substantially different character, and
the whole Act was therefore invalid. In favour of the first
contention it was argued that the concept of arbitration as
it existed in 1900 presumed that (a) the submission was
voluntary, (b) that at least some part of the tribunal was
chosen by the disputants themselves either directly or indirectly,
 (c) that the tribunal was not fettered by the ordinary
 formalities of legal procedure, and its functions were not
limited to determining existing rights but it could prescribe
rules of conduct for the future within the limits of law,
and (d) that the function of an arbitrator was a judicial
function to be exercised after hearing both sides. The Chief
Justice pointed out that in his opinion the list of statutes
which was mentioned by Isaacs J. did not permit of doubt
that the voluntary submission and the choice of arbitrators
were not an essential part of the term ° arbitration’, the
words ‘ arbitrator * and ‘ arbitration ’ having been used by
the English Parliament to denote a tribunal with respect to
which the essential element of the concept was absolute discretionary
 power, only fettered by the limits of the dispute
submitted to arbitration and the law of the land. He therefore
 dismissed the first two parts of the first objection to
the validity of the Act. With regard to the latter two he
L11 C. L. R. 1, at pp. 22 seq. See also pp. 315-20.