By A. F. MAsoN* from federal courts other than the High Court and from the Supreme

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1 THE LIMITATION OF APPEALS TO THE PRIVY COUNCIL FROM THE HIGH COURT OF AUSTRALIA, FROM FEDERAL COURTS OTHER THAN THE HIGH COURT, FROM THE SUPREME COURTS OF THE TERRITORIES AND FROM COURTS EXERCISING FEDERAL JURISDIC TION By A. F. MAsoN* The main purpose of this article is to review the limitations that will be imposed by the Privy Council (Limitation of Appeals) Bill on appeals to the Judicial Committee of the Privy Council from the High Court of Australia, federal courts other than the High Court, and the Supreme Courts of the Territories as well as the limitations and restrictions which now apply to appeals to the Privy Council from the High Court and courts exercising federal jurisdiction. At the time of writing the Bill has passed the House of Representatives and the Senate. Clause 2 of the Bill provides that the Act is to come into operation on a date to be fixed by proclamation, being a date after the date on which the Governor-General makes known that the Act has received the Royal Assent. The Bill contains two principal provisions the purpose of which is to limit appeals from the High Court to the Privy Council (clause 3) and to exclude appeals to the Privy Council from federal courts other than the High Court and from the Supreme Courts of Territories of the Commonwealth (clause 4). To assess the legal and constitutional significance of the Bill it is necessary to examine the jurisdiction of the Judicial Committee to entertain appeals from decisions of Australian courts, the provisions made by the Commonwealth Constitution with respect to appeals to the Privy Council and the provisions made by the Judiciary Act 1903 (Cth) as amended so far as they affect appeals to the Privy Council from courts exercising federal jurisdiction. The Jurisdiction ofthe Privy Council to entertain Appeals from Australian Courts before Federation Before Federation the Privy Council exercised a jurisdiction to review decisions of courts of the Australian colonies. This jurisdiction was part of the jurisdiction that the Sovereign by virtue of prerogative had from early times exercised in relation to colonial courts. The prerogative right was recognized and regulated in the Judicial Committee Acts of 1833 and 1844 (Eng.). The Act of 1833 established the Judicial Committee of the Privy Council and provided that an appeal should lie to His Majesty in Council from decisions of colonial courts and that such appeals should be referred to the Judicial Committee. The Judicial * Q.C., Solicitor-General of the Commonwealth of Australia.

2 2 Federal Law Review [VOLUME 3 Committee Act of 1844 provided that by general or special order provision might be made for the admission of appeals to His Majesty in Council from judgments of colonial courts. Subsequently, it became the practice to make Orders in Council applicable to all appeals from the Supreme Courts of colonies, containing restrictions as to the right of appeal and conditions as to its exercise, and also to make special orders giving leave to appeal in cases not falling within the general Order in Council. The general Orders in Council prescribed the conditions on which the court appealed from was bound to grant such leave while in all other cases an order for special leave by the Privy Council was necessary. In the case of the Supreme Court of New South Wales, provision was made by the Australian Courts Act 1828 (Eng.) section 15 and Orders in Council made thereunder for appeals from the Supreme Court of New South Wales to His Majesty in Council. Accordingly, at the time of Federation, an appeal lay from the courts of the Australian colonies to the Privy Council by virtue of Imperial statutes and Orders in Council made thereunder. An appeal as of right existed in those cases in which the general conditions prescribed in that behalf by a general Order in Council were satisfied and in other cases an appeal lay by special leave. Special leave to appeal was necessary in two classes of cases: (1) cases in which the appeal was not from the court of last resort in the colony; (2) cases which, although the appeal was from such a court, were not within the general Order in Council applicable to the colony.1 The expression "appeal as of right" has been generally used to signify an appeal which lies otherwise than by special leave and the expression "prerogative appeal" has been applied to an appeal which lies by special leave. It should be noted than an appeal lay to the Privy Council by special leave from the decisions of colonial courts below the level of a Supreme Court. The Federal Movement and the Proposal to Eliminate the Appeal to the Privy Council Dissatisfaction with the appeal to the Privy Council from the courts of the Australian colonies was one of the factors which gave an early impetus to the Federal movement in Australia. Professor Harrison Moore has said: The vexation of appeals to the Privy Council is an old colonial grievance of which traces might be found in the 17th century; and t Parkin and Cowper v. James and Others (1905) 2 C.L.R. 315,

3 JUNE 1968] The Limitation of Appeals to the Privy Council 3 in the early history of the Federal movement in Australia there were few matters which were more frequently referred to as demonstrating the need for union than the hardships and inconveniences of "a distant and expensive system of appeal".2 A general court of appeal for Australia was a prominent feature of the early schemes for Federation. 3 The dissatisfaction with the appeal to the Privy Council resulted in strong pressure during the Conventions for the establishment of a general court of appeal for Australia and the elimination of the appeal to the Privy Council. The draft Constitution submitted by the colonial governments to the Imperial Government provided for the establishment of the High Court of Australia as a final court of appeal from the decisions of the Supreme Courts of the States and substantially excluded the appeal to the Privy Council from the High Court (sections 73 and 74). The exclusion of the appeal to the Privy Council was unacceptable to the Imperial Government which desired to maintain that appeal intact and to include an amendment incorporating a declaration that the Colonial Laws Validity Act 1865 (Eng.) would apply to Commonwealth legislation. A compromise between the two conflicting views found expression in section 74 of the Constitution. On the side of the Imperial Government the principal objection had been that under the proposal of the colonial governments an Australian court would become the final arbiter on matters of Imperial interest as well as on matters of Australian interest. On the Australian side the principal objection to the British proposal was that the Privy Council would continue to be the final arbiter on matters of Australian interest, in particular on questions of constitutional power arising between the Commonwealth and the States. It has been stated that section 74 was accepted on the basis that it constituted the High Court as a paramount court of appeal on matters of Australian interest and enabled an appeal to be taken to the Privy Council on matters of Imperial interest. 4 The Appeal to the Privy Council as affected by the Constitution The Constitution contains no provision relating to appeals from State courts to the Privy CounciLS Accordingly, the jurisdiction of th~ Privy 2 Moore, The Commonwealth of Australia (2nd ed. 1910) 220. See also the speech of the Attorney-General, Mr Deakin, in the debate on the Judiciary Bi111903, Commonwealth Parliamentary Debates, vol. xiii, 587 fi., 9 June Quick and GaITan, The Annotated Constitution of the Australian Commonwealth. (1901) Deakin, The Federal Story: the Inner History of the Federal Cause l (2nd ed. 1963) 150 fi. S It may be that the Conventions intended to eliminate or restrict the appeal from1 State courts to the Privy Council and that by inadvertence significant words wereomitted from the draft. See speech of Mr Higgins, Commonwealth Parliamentary Debates, vol. xiii, 634, 9 June 1903.

4 4 Federal Law Review [VOLUME 3 Council to entertain appeals as of right and by special leave from the courts of the States as it existed immediately before Federation was unimpaired. Section 73 of the Constitution constituted the High Court as a general court of appeal from the Supreme Courts of the States and from any other court of a State from which at the establishment of the Commonwealth an appeal lay to the Privy Council, as well as constituting it as a court of appeal from judgments given in the exercise of its original jurisdiction and from judgments of other federal courts and courts exercising federal jurisdiction. Section 74 makes no express reference to a distinction between matters of Imperial interest and matters of Australian interest. The distinction which the section makes is one between inter se questions and all other questions, preserving to the High Court a final and exclusive jurisdiction in inter se questions except in those cases in which the High Court certifies that the question is one which ought to be determined by the Privy Council. Section 74 contains three provisions each of which directly relates to the appeal to the Privy Council. Firstly, it excludes any appeal from decisions of the High Court on inter se questions except pursuant to a certificate of the High Court, in which event an appeal lies as of right. Secondly, it enables an appeal to be taken to the Privy Council, by special leave, but not as ofright, from other decisions ofthe High Court. Thirdly, it enables the Commonwealth Parliament to limit the matters in which an appeal may be taken to the Privy Council by special leave. And it is in the exercise of that power that the Privy Council (Limitation of Appeals) Bill will be enacted. Section 77 of the Constitution enables the Commonwealth Parliament to define the extent to which the jurisdiction of a federal court shall be exclusive ofthat which belongs to or is invested in the courts ofthe States as well as enabling the Parliament to invest any court of a State with federal jurisdiction. It is in the exercise of that power that the Commonwealth Parliament has enacted section 39 of the Judiciary Act and thereby restricted the matters in which an appeal may be taken to the Privy Council from State courts exercising federal jurisdiction. Applications for Special Leave to Appeal to the Privy Council and Applications for a Certificate under Section 74 In exercising its jurisdiction to grant special leave to appeal from a decision of the High Court, the Judicial Committee has always given great weight to judgments of the High Court. Moreover, the Privy Council has uniformly applied the principle enunciated in Prince v. Gagnon 6 that special leave will not be granted save where the case is of 6 Prince v. Gagnon (1882) 8 App. Cas. 103.

5 JUNE 1968] The Limitation ofappeals to the Privy Council 5 gravity involving matters of public interest or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a substantial character. And the Privy Council has consistently applied the rule that where an appellant has elected to appeal from a decision of the Supreme Court of a State to the High Court, in lieu of appealing directly to the Privy Council, it will not in the absence of a very strong case grant special leave to appeal from a decision of the High Court which is adverse to the appellant. 7 The basis of this rule is that the appellant has an option to elect between two alternative avenues of appeal from the judgment of a Supreme Court and that it is for him to make his choice. The power conferred upon the High Court to issue a certificate that an inter se question is one which ought to be determined by the Privy Council, with the consequence that an appeal lies without leave, has been exercised once only.8 Consistently with its view that section 74 places the responsibility of the interpretation of the Constitution in its distribution of powers upon the High Court, the High Court has held that exceptional circumstances providing strong considerations are necessary in any case before a certificate will issue resulting in a transfer of that responsibility to the Privy Council. 9 Applying this rule, the High Court has refused every application made for a certificate since the Royal Commissions case 10with the result that the appeal to the Privy Council from a decision of the High Court involving an inter se question has ceased to be of significance. Appeals to the Privy Council frolrl State Courts exercising Federal Jurisdiction The esoteric mysteries of federal and non-federal jurisdiction have been explored elsewhere 11 and it is unnecessary to deal with them in detail here. The foundation for the distinction which has been drawn between federal and non-federal jurisdiction lies in the provisions of clause 5 and chapter III, in particular sections of the Constitution. By covering clause 5 the Constitution and laws made by the Parliament are made binding on the courts of the States thereby enabling State 7 Clerque v. Murray [1903] A.C The Colonial Sugar Refining Co. Ltd v. The Attorney-General for the Commonwealth (Royal Commissions case) (1912) 15 C.L.R Nelungaloo Pty Ltd v. The Commonwealth ( ) 85 C.L.R The Colonial Sugar Refining Co. Ltd v. The Attorney-General for the Commonwealth (1912) 15 C.L.R Notably by Mr Owen Dixon K.C. (as he then was) in his evidence before the Royal Commission on the Constitution (1929) and by Cowen, Federal Jurisdiction in Australia (1959).

6 6 Federal Law Review [VOLUME 3 courts to apply and enforce federal laws in the exercise of their jurisdictions. But section 77 enables the Commonwealth Parliament to invest jurisdiction (in the matters mentioned in sections 75 and 76) in State courts. Jurisdiction invested by virtue of the power conferred by section 77 is regarded as federal jurisdiction, whereas jurisdiction exercised by State courts otherwise than by virtue of an investing under section 77 is regarded as non-federal jurisdiction. The power to invest federal jurisdiction given by section 77 has been regarded as including a power to prescribe the conditions on which the jurisdiction thereby conferred may be exercised, including a condition that any decision reached in the exercise of the jurisdiction is to be final and conclusive, or final and conclusive except in so far as an appeal may be taken to the High Court from that decision. The power given by section 77 was thought to contain a basis on which appeals to the Privy Council from State courts exercising federal jurisdiction might be limited. But to invest a State court with federal jurisdiction under section 77 in a particular matter does not preclude the possibility that the State court may exercise non-federal jurisdiction in that matter. 12 It therefore became desirable, so far as it was possible, to make the invested federal jurisdiction exclusive of any non-federal jurisdiction. The foundation for this step was provided by section 77 (ii.) which enables the Commonwealth Parliament to define the extent to which the jurisdiction of any federal court should be exclusive of that which belongs to or is vested in the courts of the States. Consequently by making the High Court's jurisdiction exclusive of the corresponding jurisdiction which belonged to State courts, the Parliament could under section 77 (ii.) deprive State courts of their corresponding non-federal jurisdiction. Contemporaneously, the Parliament could, by virtue of section 77 (iii.), invest the State courts with a federal jurisdiction on conditions that restricted the right of appeal. It was on this view of the operation of the constitutional provisions that the provisions of sections 38 and 39 of the Judiciary Act 1903 (Cth) were based. It is clear that the provisions were designed to eliminate the appeal as of right to the Privy Council from State courts exercising federal jurisdiction and to assist in providing some solution to the problem arising from the existence of the optional appeal to the Privy Council or the High Court. It was thought the Commonwealth Parliament could not validly eliminate the prerogative appeal. 13 By the Judiciary Act 1903 (Cth) additional original jurisdiction was conferred on the High Court in all matters arising under the Constitution or 12 Lorenzo v. Carey (1921) 29 C.L.R. 243, See the speeches of Mr Higgins and the Attorney-General, Mr Deakin, on the Judiciary Bill, Commonwealth Parliamentary Debates, vol. xiii, , 23 June 1903.

7 JUNE 1968] The Limitation of Appeals to the Privy Council 7 involving its interpretation (section 30), pursuant to the power conferred by section 76 (i.) of the Constitution. Section 38 of that Act provided that the jurisdiction of the High Court should be exclusive of the jurisdiction of State courts in many of the matters referred to in section 75 of the Constitution. But the most important provision in the 1903 Act was section 39 which, in so far as it is material, provided as follows: 39.-(1.) The jurisdiction of the High Court in matters not mentioned in the last preceding section shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. (2.) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section, and subject to the following conditions and restrictions:- (a) Every decision of the Supreme Court of a State, or any other court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council, shall be final and conclusive except so far as an appeal may be brought to the High Court. (b) Wherever an appeal lies from a decision of any Court or Judge of a State to the Supreme Court of the State, an appeal from the decision may be brought to the High Court. Section 39 (1.) deprived State courts of non-federal jurisdiction to entertain matters in respect of which exclusive jurisdiction was conferred on the High Court. And section 39 (2.) invested State courts with federal jurisdiction to entertain all matters in which original jurisdiction was or could be conferred on the High Court. The federal jurisdiction thereby invested in State courts was invested on the conditions prescribed in subsection (2.) with the consequence that the decision of the Supreme Court of a State is final and conclusive except so far as an appeal may be brought to the High Court. It was not long before it became apparent that the device contained in section 39 of the Judiciary Act was not impregnable. In Webb v. Outtrim 14 an appeal was taken to the Judicial Committee from a decision of the Supreme Court of Victoria on a question which turned on the application to the Commonwealth Constitution of the doctrine of implied immunity of instrumentalities. The question at issue thus involved the interpretation of the Constitution with the consequence that the Supreme Court of Victoria was exercising federal jurisdiction 14 (1906) 4 C.L.R. 356.

8 8 Federal Law Review [VOLUME 3 conferred upon it by section 39 (2.) of the Judiciary Act 1903 (Cth).15 The reasons advanced by the Privy Council for entertaining jurisdiction have been examined elsewhere. 16 It is sufficient for present purposes to say that the judgment of the Earl of Halsbury17 contains a clear expression of opinion that the Constitution does not authorize the abrogation of an appeal to the Privy Council from State courts. It was so understood by the High Court in Baxter v. The Commissioners of Taxation (New South Wales).18 Apart from the jurisdictional questions, Webb v. Outtrim raised a question of fundamental importance as to the respective authority of the High Court and the Privy Council on inter se questions because, although the Privy Council may not have discerned it, Webb v. Outtrim 19 concerned an inter se question. In Baxter's case,20 the High Court made it clear that it regarded itself as the ultimate arbiter on all inter se questions unless it was of the opinion in any particular case that it should submit itself to the guidance of the Privy Council. The Court concluded that accordingly it was not bound to follow Webb v. Outtrim and that no reason had been shown why it should depart from its earlier decisions. The majority of the Court considered that section 39 (2.) (a) validly eliminated the appeal as of right from State courts to the Privy Council in matters of federal jurisdiction.21 Following Baxter's case amendments designed to strengthen the position of the High Court and render more effective the impediments to an appeal to the Privy Council from State courts exercising federal jurisdiction were made to the Judiciary Act. The first step was the introduction of section 38A which conferred an exclusive jurisdiction on the High Court to determine inter se questions (other than in trials for indictable offences) and deprived State Supreme Courts of any jurisdiction to deal with such questions. The second step was the introduction of section 40A which made provision for the automatic removal to the High Court of a cause involving an inter se question pending in the Supreme Court of a State. The validity of section 40A was unanimously upheld by the High Court in Pirrie v. McFarlane. 22 But the vexed question of the validity and effect of section 39 (2.) (a) arose for consideration in a series of cases arising by way of appeal to 15 Section 30 of the Judiciary Act 1903 (Cth) conferred original jurisdiction on the High Court in all matters arising under the Constitution or involving its interpretation. 16 Bailey, "The Federal Jurisdiction of State Courts" ( ) 2 Res Judicatae 109, Webb v. Outtrim (1906) 4 C.L.R. 356, (1907) 4 C.L.R (1906) 4 C.L.R (1907) 4 C.L.R. 1087, Ibid (1925) 36 C.L.R. 170.

9 JUNE 1968] The Limitation ofappeals to the Privy Council 9 the High Court from orders made in the Supreme Courts of the States granting leave to appeal to the Privy Council pursuant to provisions in the Orders in Council regulating appeals as of right to the Privy Council.23 In the Limerick 24 and Kidman 25 cases it was held by majority that the section was not invalid by reason of repugnancy under the Colonial Laws Validity Act 1865 (Eng.) to an Imperial Order in Council under the Australian Courts Act 1828 (Eng.). In the latter case the Court refused to allow the earlier decisions to be re-opened. The conclusion that section 39 (2.) (a) was valid and abrogated the appeal as of right from the Supreme Courts to the Privy Council in the exercise of federal jurisdiction was supported by the High Court on the following principal grounds: (a) The suggestion made in the judgment in Webb v. Outtrim 26 that the section was invalid was not essential to the decision in that case. (b) Section 77 (iii.) of the Constitution by enabling the Parliament to invest any court of a State with federal jurisdiction empowered the Parliament to provide the limits within which the decision of a State court is to be final and conclusive and thereby to restrict appeals from a decision made in the exercise of the invested jurisdiction. (c) The Constitution (and in particular section 77 (iii.)) should, in the light of the doctrine of responsible government, be read as not being subject to the power conferred by the Judicial Committee Act 1844 (Eng.) to provide for appeals to the Privy Council. Section 77 (iii.) should be construed as conferring an overriding power to make full and complete provision for the exercise of federal jurisdiction. (d) So construed, the Constitution enabled the Parliament to legislate in such a way as to displace the provisions of the Orders in Council, with the consequence that no repugnancy arose within the meaning of the Colonial Laws Validity Act. (e) As a matter of construction the section should be read as excluding the appeal as of right to the Privy Council only and as having no application to the prerogative appeal. Apart from the observations of the Earl of Halsbury in Webb v. Outtrim, the validity and effect of section 39 (2.) (a) has not been considered by the Judicial Committee, although it has on three occasions considered the validity of Canadian legislation limiting or abrogating 23 The Commonwealth v. The Limerick Steamship Company Limited: The Commonwealth v. Kidman and Others (1924) 35 C.L.R. 69; The Commonwealth v. Kreglinger and Fernau Limited: The Commonwealth v. Bardsley (1926) 37 C.L.R (1924) 35 C.L.R (1926) 37 C.L.R (1906) 4 C.L.R. 356, [1907] A.C. 81.

10 10 Federal Law Review [VOLUME 3 Canadian appeals to the Privy Council. In Nadan v. The King 27 the Judicial Committee held that section 1025 of the Canadian Criminal Code, which eliminated the appeal by special leave to the Privy Council from Canadian courts in criminal cases, was invalid. In British Coal Corporation v. The King 28 the Judicial Committee upheld the validity of a Canadian statute, enacted after the adoption of the Statute of Westminster in 1931, which prohibited all appeals to the Privy Council in criminal cases. And in Attorney-General for Ontario v. Attorney General for Canada 29 the validity of the proposal to abolish all appeals to the Privy Council from the Supreme Court of Canada and provincial courts was upheld. In delivering the judgment of the Judicial Committee in Attorney General for Ontario v. Attorney-General for Canada Lord Jowitt L.C. disposed of the suggestion that the distinction between the appeal as of right and the appeal by special leave had any relevance to the question of validity of the proposed legislation. His Lordship said: It does not, however, appear to their Lordships to be necessary to consider these matters in detail nor to distinguish those cases in which appeal is said to lie as of right from those in which it is said to lie by leave under the prerogative. This has been for practical purposes a convenient mode of division, but fundamentally in both classes of case the appeal is founded on that prerogative which, as long ago as 1867 in Reg. v. Bertrand, was described as "the inherent prerogative right, and, on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction, with a view not only to ensure, as far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally." The exercise of this appellate jurisdiction is regulated generally by the Judicial Committee Acts, and, in regard to each of the provinces of Canada, either (as, for example, in the case of Manitoba) by Orders in Councilor (as in the case of Ontario and Quebec) by provincial statutes made under the authority or assumed authority (it matters not which) of the Constitutional Act of 1791 or (as in the case of British Columbia) by an imperial statute, and the only difference between the two classes of case is that an appeal may be said to lie as of right when an appellant brings his appeal under the provisions of the relevant Order in Council or statute; when he cannot do so, but can only appeal by special leave of the Sovereign on the advice of the Judicial Committee itself, then the appeal is sometimes said to be under the prerogative, a description which, if it is intended to be exclusive, is inaccurate. 3o The Lord Chancellor stated that the Statute of Westminster had altered the basis on which the decision in Nadan v. The King had rested. "fhere were two grounds only for that decision, namely: 27 [1926] A.C [1935] A.C [1947] A.C Ibid. 145.

11 JUNE 1968] The Limitation of Appeals to the Privy Council 11 (a) (b) that section 1025 was repugnant to the provisions of the Imperial statutes providing for the appeal to the Privy Council and was therefore invalid by virtue of the operation of the Colonial Laws Validity Act; that section 1025 was beyond the legislative competence of the Dominion Parliament by reason of the doctrine of territorial limitation on the powers of colonial legislatures.31 Section 2 of the Statute of Westminster displaced the application of the Colonial Laws Validity Act to the Dominions and provided that no provision of any law made after the commencement of the Act by the Parliament should be void or inoperative on the ground of repugnancy. By section 3 of the statute it was declared and enacted that the Parliament of a Dominion had full powers to make laws having an extraterritorial operation. The provisions of the statute accordingly displaced the two grounds upon which Nadan v. The King had been decided. Although the later decisions of the Privy Council provide powerful support for the view that the Commonwealth Parliament may validly abrogate all appeals to the Privy Council from State courts in the exercise of federal jurisdiction since the adoption by the Commonwealth in 1942 of the Statute of Westminster,32 they raise a question as to the correctness of the distinction drawn in the High Court cases between the appeal as of right and the prerogative appeal to the Privy Council and as to the interpretation which has been placed upon section 39 (2.) (a) by the High Court. But it may be that a sufficient distinction from the Canadian decisions is to be found in the presence of section 77 (iii.) of the Constitution which has no precise Canadian counterpart and which was central to the reasoning of the High Court in Limerick's case. 33 Be that as it may, we are bound to accept the authority of the decision in Limerick's case to the effect that section 39 (2.) (a) is valid and that it is effective to oust the appeal as of right to the Privy Council from State courts in the exercise of federal jurisdiction. Although the Commonwealth Parliament has had power, at any rate since 1942, to eliminate the appeal by special leave to the Privy Council from State courts in the exercise of federal jurisdiction, no amendment has been made to section 39 (2.) (a). It has been suggested that since the adoption by the Commonwealth of Australia of the Statute of Westminster section 39 (2.) (a) should be construed as extending to the appeal by special leave as well as to the appeal as of right. 34 The basis for this suggestion is to be found in 31 Ibid Statute of Westminster Adoption Act 1942 (Cth). 33 (1924) 35 C.L.R Sawer, Cases on the Constitution ofthe Commonwealth ofaustralia (2nd ed. 1957) 594.

12 12 Federal Law Review [VOLUME 3 Co-operative Committee on Japanese Canadians v. Attorney-General for Canada 35 in which the Judicial Committee rejected the argument that the Canadian War Measures Act 1914 should be construed as confined in its possible ambit to the making of orders which would, consistently with the Colonial Laws Validity Act 1865, then be valid as law in the Dominion. It was held that the only effect of the Colonial Laws Validity Act upon the construction of the War Measures Act was that the latter did not upon its true construction confer a power beyond the extent to which it might at the date of its use be validly exercised. The effect of this decision is to support the view that the inconsistency (if any) between section 39 (2.) (a) and the Imperial statutes and Orders in Council which might have led to section 39 (2.) (a) being inoperative before the passing of the Statute of Westminster Adoption Act 1942 (Cth), did not derogate from the full and complete operation of section 39 (2.) (a) after that date. But the decision itself provides no reason for departing from Limerick's case for the High Court considered that the Colonial Laws Validity Act had no application at all to section 39 (2.) (a). Likewise, section 15A of the Acts Interpretation Act (Cth), which applies to Acts passed before, as well as to Acts passed after its enactment, might be relied upon since 1942 to achieve the same result and to overcome any difficulty arising from the doctrine against extraterritorial operation of statutes. 36 But section 15A serves only to support Limerick's case for the High Court did not regard the doctrine against extra-territorial operation as a source of invalidity. The contention that section 39 (2.) (a) should now be construed as extending to the appeal by special leave, as well as the appeal as of right, appears to rest more firmly on the absence of any material distinction between the two forms of appeal that has a significance in the construction of the language of section 39 (2.) (a). But in the absence of any judicial pronouncement indicating support for a wider construction of the provision at this stage, it should be regarded in accordance with existing authority as extending only to the appeal as of right. A feature of section 39 which should not be overlooked is that the area in which State courts have been deprived by section 39 (1.) of the non-federal jurisdiction which belonged to them is less extensive than the area in which federal jurisdiction has been invested in State courts by section 39 (2.). For part only of the total content of federal jurisdiction in sections 75 and 76 of the Constitution has been given to the High Court, whereas section 39 (2.) invests in State courts the total content of federal jurisdiction to the extent to which it is not otherwise 35 [1947] A.C Lockwood v. The Commonwealth (1953) 90 C.L.R. 177.

13 JUNE 1968] The Limitation of Appeals to the Privy Council 13 exclusively committed to the High Court. As section 39 (1.) deprives the State courts of their non-federal jurisdiction only in those matters in which the High Court has had jurisdiction conferred upon it, the possibility remains that State courts may exercise a non-federal jurisdiction in some matters which fall within section 76, notably section 76 (ii.), and that the restriction contained in section 39 (2.) (a) has no application to the exercise of that non-federal jurisdiction. 37 The Relationship between Section 39 (2.) (a) of the Judiciary Act and other Statutes Investing Federal Jurisdiction in State Courts It has sometimes been assumed that the exercise of federal jurisdiction by State courts derives in its totality from section 39 (2.) (a). The assumption arises from the general language of section 39 and it treats the conditions prescribed in subsection (2.) (a) as attaching to the exercise of all federal jurisdiction by State courts. But as Dixon J. (as he then was) said in Ffrost v. Stevenson: It may be a question whether sec. 39 (2) and its sub-paragraphs govern an authority which is given by a Federal statute to State courts for the first time and does not otherwise exist...38 The question was again adverted to in Goward v. The Commonwealth 39 when Dixon C.J., Williams, Webb and Kitto JJ. said: There is a difficulty in treating s. 39 (2) (b), (c) and (d) as applying to a State court exercising the authority given it by s. 20 of the Commonwealth Employees' Compensation Act For s. 39 (2) is expressed to confer federal jurisdiction within the limits of the several jurisdictions of the State courts and the paragraphs which ensue, though expressed in themselves as positive commands are enumerated as conditions of and restrictions upon the federal jurisdiction conferred. It may be said that the paragraphs do not apply to new federal jurisdictions conferred by subsequent Commonwealth enactments and that s. 20 as such an enactment confers a jurisdiction not theretofore exercisable and so outside s. 39 (2). But having regard to the nature and purpose of s. 39 there are reasons why s. 20 should be construed with it so that such a result does not ensue. We have held that s. 39 (2) is ambulatory in the sense that it covers State jurisdiction as it exists from time to time: The Commonwealth v. District Court of the Metropolitan District. And we have held that a subsequent federal enactment conferring part of the jurisdiction which s. 39 (2) also confers does not exclude the operation of the paragraphs described as conditions and restrictions: Adams v. Cleeve. But to treat a proceeding under s. 20 as falling 37 Booth v. Shelmerdine Bros Pty Ltd [1924] V.L.R. 276; Ffrost v. Stevenson (1937) 58 C.L.R. 528, ; Cowen, Federal Jurisdiction in Australia (1959) (1937) 58 C.L.R. 528, (1957) 97 C.L.R. 355.

14 14 Federal Law Review [VOLUME 3 within these paragraphs, as was done in Wright's Case and in The Common'wealth v. Anderson may perhaps involve a further step. For although s. 20 is expressed rather as conferring a right of appeal and not in terms as conferring federal jurisdiction on the State courts there can be no doubt that it does invest an authority to grant relief and that that authority would not otherwise exist. In Fjrost v. Stevenson Dixon J. (as he then was) remarked that it may be a question whether s. 39 (2) and its sub-paragraphs govern an authority which is given to State Courts for the first time and does not otherwise exist. We are however disposed to think that, having regard to the purposes of s. 39 and what may be fairly called its basal character in matters concerning the federal jurisdiction of State courts, such a provision as s. 20 should be treated as implying an assumption that the general nature of the federal jurisdiction of State courts is fixed by its provisions. In other words we think that s. 20 should be interpreted in connexion with s. 39 and that it may be understood as meaning to enable the State courts which it mentions to give the relief it prescribes on the implied assumption that they will exercise federal jurisdiction as under s Although these observations were directed to the relationship between section 39 and section 20 of the Commonwealth Employees' Compensation Act (Cth), they provide strong ground for thinking that in general the conditions prescribed by section 39 apply to the exercise of federal jurisdiction by State courts. However, some federal statutes invest federal jurisdiction by making specific provision for the exercise of the jurisdiction in a manner that differs from the conditions prescribed by section 39 (2.). By way of example, the National Service Act (Cth) vests federal jurisdiction in certain State courts (section 57A), makes provision for the constitution of courts of summary jurisdiction in a manner different from that provided for by section 39 (2.) (d) of the Judiciary Act 41 and provides that the decision of a court of review shall be final and conclusive. 42 In such a case there is much to commend the view that the exercise of federal jurisdiction is not governed by the conditions prescribed by section 39 (3.) of the Judiciary Act. The Appealfrom the High Court to the Privy Council as it will be Affected by the Privy Council (Limitation of Appeals) Bill 1968 Clause 3 of the Bill provides: 3.-(1.) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that- (a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and 40 Ibid (footnotes omitted from original text). 41 National Service Act (Cth) section 29B. 42 Ibid. section 29C (7.).

15 JUNE 1968] The Limitation ofappeals to the Privy Council 15 (b) did not involve the application or interpretation of (i) the Constitution; (ii) a law made by the Parliament; or (iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament. (2.) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act. It will be recalled that the legislative power conferred by the last sentence of section 74 of the Constitution upon the Commonwealth Parliament to limit the matters in which leave may be asked to appeal to the Privy Council does not enable the Parliament to eliminate the appeal in decisions on inter se questions because an appeal to the Privy Council from a decision on an inter se question can be taken only in the event that the High Court issues a certificate and in that event no application for leave is necessary. Accordingly, the power to limit the matters in which leave may be asked has no application to the High Court's power to issue a certificate in relation to a decision on an inter se question. Apart from this limitation on the legislative power conferred by the last sentence of section 74, there is perhaps a further limitation inherent in the language in which the provision is expressed. The power conferred is not expressed to be a power to abolish or to abrogate; the power is expressed in terms which suggest that it constitutes a power to limit or confine the matters in which leave may be asked. Clause 3 of the Bill is of course an exercise of the legislative power conferred by the last paragraph of section 74. Although the clause does not touch the power of the High Court to grant a certificate in relation to a decision on an inter se question, there is every reason for thinking that the High Court will continue to adopt its traditional attitude to certificate applications. The clause limits the matters in which leave to appeal may be asked. But it is a wider limitation than was to be anticipated from previous statements made on behalf of the Government. In the course of a debate in 1965 on an Opposition motion that the appeal to the Privy Council from Australian courts should be abolished, the then Prime Minister, Sir Robert Menzies, had indicated that the appeal to the Privy Council might be limited by providing that in all matters arising under the Constitution or involving its interpretation, leave should not be granted without a certificate of the High Court. 43 Subsequently, on 6 September 1967, the Attorney-General, Mr Bowen, stated that 43 Commonwealth Parliamentary Debates (House of Representatives) vol. 47, , 23 September 1965.

16 16 Federal Law Review [VOLUME 3 the Government had decided to limit the appeal from the High Court to the Privy Council by excluding the appeal in all matters of federal jurisdiction. 44 The provisions of clause 3 of the Bill will operate to bar an appeal to the Privy Council from the High Court in all the following cases: (1) where the High Court decision was given otherwise than on appeal from a decision of the Supreme Court of a State; (2) where the High Court decision was given on appeal from a decision of the Supreme Court of a State in the exercise of federal jurisdiction; (3) where the High Court decision involved the application or interpretation of (i) the Constitution; (ii) a Commonwealth statute; or (iii) an instrument (including an ordinance, rule, regulation or by-law) made under a Commonwealth statute. It will be seen therefore that the area in which appeals are to be excluded extends significantly beyond those cases which arise under or involve the interpretation of the Constitution and those cases which involve the exercise of federal jurisdiction. Thus, a decision of the High Court given on appeal taken under section 73 of the Constitution from the decision of an inferior State court not involving the exercise of federal jurisdiction or the application or interpretation ofthe Constitution, a Commonwealth law or instrument made under a Commonwealth statute, will no longer be susceptible of an appeal to the Privy Council. The expression "a decision... that did not involve the application or interpretation" of the laws mentioned in clause 3 (1.) (b) departs from the expressions "arising under" and "arising under... or involving its interpretation" found in the Constitution. In its application to the laws mentioned in clause 3 (1.) (b) (ii) and (iii) the new expression appears to comprehend decisions in matters other than matters within the meaning of section 76 (ii.) of the Constitution. Section 76 (ii.) is confined to matters arising under a law made by the Parliament. It does not catch up a matter which merely involves the interpretation of a federal law but does not arise under that law, for example, a matter of defence having its origin in federal law. Nor does it appear to catch up a matter which arises under a federal law other than a statute. But both these matters may be said to involve the application or interpretation of the laws mentioned in clause 3 (1.) (b) (ii) or (iii). In the Senate debate the complexity of the provisions of clause 3 (1.) came under sharp attack. 45 It was said that the distinction made by the 44 Commonwealth Parliamentary Debates (House of Representatives) , 6 September See the speech of Senator Greenwood, Commonwealth Parliamentary Debates (Senate) 772 ff., 2 May 1968.

17 JUNE 1968] The Limitation of Appeals to the Privy Council 17 provisions is unreal and is potentially productive of disputation and unnecessary litigation. The clause is admittedly complicated and difficulty may be experienced in applying the criteria which it enunciates. But this complexity reflects the problems created by chapter III of the Constitution and the complexities which engage the area of federal jurisdiction. The operation of clause 3 (1.) presents no problem in the case where the appeal to the High Court is brought from a decision of the Supreme Court in the exercise of an exclusively federal jurisdiction as, for example, in a suit to which the Commonwealth is a party or a matter between residents of different States. But the operation of the sub-clause where the judgment of the Supreme Court relates to more than one cause of action and the causes of action involve in one instance the exercise of federal jurisdiction and in another instance the exercise of non-federal jurisdiction will perhaps depend on the meaning to be assigned to the words "matter" and "decision". Instances of this situation are suits in which the plaintiff seeks relief for infringement oftrade mark and passingoff and actions in which the plaintiff sues in contract and on a bill of exchange. Clause 3 (2.) does not call for any specific comment. Its purpose is to preserve the appeal in relation to proceedings already commenced when the Act comes into operation. The Appealfrom other Federal Courts and the Supreme Courts ofthe Territories as it will be affected by the Bill Clause 4 of the Bill provides: 4. Leave of appeal to Her Majesty in Council, whether special leave or otherwise, shall not be asked from a decision of a Federal Court (not being the High Court) or of the Supreme Court of a Territory of the Commonwealth. It is accepted that an appeal by special leave lies to the Privy Council from the decisions of other federal courts and the Supreme Courts of the Territories, although the jurisdiction is rarely invoked. 46 The purpose of clause 4 is to abrogate the appeal by special leave in these cases. In the debate in the House of Representatives the Leader of the Opposition pointed out that an appeal by special leave lay to the Privy Council from the inferior courts of the Territories and that clause 4 should be amended so as to include a reference to a decision of an 46 See the reference by the Leader of the Opposition, Mr Whitlam, to the petition for special leave to appeal to the Privy Council from the Commonwealth Industrial Court in Cameron v. Davis, Commonwealth Parliamentary Debates (House of Representatives) 867, 4 Apri11968.

18 18 Federal Law Review [VOLUME 3 inferior court of the Territories, as well as to a decision of the Supreme Courts of the Territories. 47 The Attorney-General replied by saying: When clause 4 was being settled, this matter was considered at some length. It was considered that no appeal had, in fact, been taken so far and that the likelihood of one being taken from an inferior court was so remote as to make it unnecessary to express the provision in such a way as to cover it. Indeed, it was considered that in the unlikely event of an appeal being taken from an inferior court direct to the Privy Council so that leave was applied for, it would be even more unlikely that leave would be granted. After this clause has been passed, the possibility of the Privy Council's actually considering such a case and granting leave in the face of the section and the policy it expresses is so unlikely that we need not really concern ourselves with it. Should such a case arise and be taken there would be no great difficulty in making a further amendment. 48 Summary Upon the Privy Council (Limitation of Appeals) Bill 1968 receiving the Royal Assent and coming into operation the appeal to the Privy Council from decisions of Australian courts will stand as follows: From the High Court (a) An appeal by special leave will lie in those cases which answer the description contained in clause 3 of the Bill. (b) An appeal from a decision on an inter se question will lie in the event of the High Court issuing a certificate under section 74 of the Constitution. From other Federal Courts and the Supreme Courts of the Territories There will be no appeal. From the Inferior Courts of the Territories An appeal by special leave may lie, but the jurisdiction has not been invoked in the past, and there is little reason to believe that it will be invoked in the future. From State Courts in the exercise of Federal Jurisdiction According to the existing decisions of the High Court, the appeal as of right is excluded by section 39 (2.) (a) of the Judiciary Act. Whether that provision should now be construed so as to leave on foot the appeal by way of special leave is not entirely free from doubt. But it is clear 47 Loc. cit. 48 Commonwealth Parliamentary Debates (House of Representatives) , 4 April 1968.