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§ 298. “The Remuneration shall not be Diminished.”

It has been held in the United States that Congress cannot, under the Constitution, levy a tax on the salary of a judicial officer of a State. (Buffington v. Day, 11 Wall. 113.) It would seem that a tax on the salary of the Justices of the Federal Courts would be equally unconstitutional, as being a diminution of their salary.

Appellate jurisdiction of High Court.

73. The High Court shall have jurisdiction299, with such exceptions and subject to such regulations300 as the Parliament prescribes, to hear and determine appeals301 from all judgments, decrees, orders, and sentences302 —

  • (i.) Of any Justice or Justices exercising the original jurisdiction of the High Court303:
  • (ii.) Of any other federal court, or court exercising federal jurisdiction304; or of the Supreme Court of any State305, or of any other court of any State306 from which at the establishment of the Commonwealth an appeal lies to the Queen in Council:
  • (iii.) Of the Inter-State Commission, but as to questions of law only307:

and the judgment of the High Court in all such cases shall be final and conclusive308.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Common-wealth


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an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals309 to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

UNITED STATES.—The judicial power shall extend to all cases in law and equity arising under this Constitution. the laws of the United States, and treaties made, or which shall be made, under their authority [to all cases affecting ambassadors, other public Ministers, and consuls]; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies [between two or more States; between a State and citizens of another State]; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between [a State, or] the citizens thereof, and foreign States, citizens, or subjects. [In all cases affecting ambassadors, other public Ministers, or consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.] In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.—Const., Art. III., sec.2.

HISTORICAL NOTE.—A General Court of Appeal for Australia was included in the earliest schemes of Federation, from 1849 downwards (see pp. 85, 91, 94 supra.) The Federal Council Act of 1885, however, did not provide for the establishment of a federal Court of Appeal.

In 1870 a Royal Commission was appointed by the Government of Victoria to consider and report upon the expediency of inviting the co-operation of the Australian colonies to provide for intercolonial legislation on various matters and “to establish a court of appeal.” The Commission consisted of Messrs. J. J. Casey (Chairman), Francis Murphy, Jas. A. McPherson, C. Gavan Duffy, J. Macgregor, G. B. Kerferd, G. P. Smith, T. H. Fellows, and George Higinbotham. In April, 1871, the Commission brought up a first Report, which was signed by only seven of the Commissioners—Mr. Fellows being out of the colony, and Mr. Higinbotham having refused to act. The part of this report which deals with the establishment of a court of appeal contains the following passages:—

“Considerations of grave importance suggest the expediency, if not the necessity, that a Court of Appeal, formed of Colonial judges, should be established for the Australasian colonies. The cost and delay occasioned by appeals to the Privy Council would be removed. Judges conversant with colonial life, manners, and laws would adjudicate on matters presenting peculiar and distinct features—the result of colonial habits, industries, and trade. The decisions of the various Supreme Courts of the colonies upon purely colonial affairs would thereby be brought into harmony, and uniformity of law be thus encouraged, to the great advantage of commerce. The first effective step towards the union and consolidation of the colonies would thus, it is thought, be consummated. We recommend that a Court of Appeal for Australasia be formed, consisting of one judge from each colony, and that the Court should sit in each colony successively, or at such places as may be determined upon as occasion required; and that the quorum be regulated in proportion to the number of colonies that appointed judges.”

“Another question arises as to how far the Court of Appeal is to be one of final determination, excluding the appeal to Her Majesty in Council. We deem it advisable to leave to the Legislature of each colony to determine that question for itself, by empowering the colonies to enact suitable laws providing the cases in and the terms upon which an appeal may be had to the Queen.” (Parl. Papers [Vic.], 1871, vol. ii. p. 711.)

To the report was appended the draft of an “Australasian Legislation Bill” to be passed by the Imperial Parliament, providing for intercolonial legislation on several subjects, and for the establishment of a Court of Appeal on the lines indicated. The part of the report dealing with the Court of Appeal was submitted by Lord Kimberley (Secretary of State for the Colonies) to the Lord President of the Privy Council. The reply of the President is contained in a letter from the Registrar of the Privy Council, dated 20th July, 1871, which, after dealing with the Commission's criticisms of the existing appellate system, concludes as follows:—




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“The appellate jurisdiction of Her Majesty in Council exists for the benefit of the colonies, and not for that of the mother country; but it is impossible to overlook the fact that this jurisdiction is a part of the prerogative which has been exercised for the benefit of the colonies from the date of the earliest settlements of this country, and that it is still a powerful link between the colonies and the Crown of Great Britain. It secures to every subject of Her Majesty throughout the Empire his right to claim redress from the Throne; it provides a remedy in certain cases not falling within the jurisdiction of ordinary Courts of Justice; it removes causes from the influence of local prepossessions; it affords the means of maintaining the uniformity of the law of England in those colonies which derive the great body of their law from Great Britain; and it enables suitors, if they think fit, to obtain a decision in the last resort from the highest judicial authority and legal capacity existing in the metropolis.

“The power of establishing or remodelling the Colonial Courts of Justice is vested by the 28 and 29 Victoria in the colonial legislatures; and it is undoubtedly desirable that the colonial Courts of Justice should be so constituted as to inspire confidence in their decisions, and to give rise to very few ulterior appeals. That is in fact the case with the Superior Courts of Westminster Hall; and the small number of appeals from the Australian courts is the best testimony to the excellence of those courts also. But the controlling power of the Highest Court of Appeal is not without influence and value, even when it is not directly resorted to. Its power, though dormant, is not unfelt by any Judge in the Empire, because he knows that his proceedings may be made the subject of appeal to it.

“But it by no means follows as a necessary consequence of the powers vested in the colonial Legislatures by the 28 and 29 Victoria that laws should be enacted which would control the exercise of the prerogative of the Crown in the exercise of its Supreme Appellate Jurisdiction.”

Sydney Convention, 1891.—The clause as introduced and passed without discussion in 1891 was substantially identical with this section, with the exception of the provision for an appeal from the Inter-State Commission—a body not provided for by the Bill of 1891.

Adelaide Session, 1897.—At the Adelaide session the clause was introduced in practically the same form, with two additions. After “appeals,” the words “both as to law and fact” were inserted; and a proviso was added that “no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law.” (See U.S. Constitution, Amend. vii.) But in Committee Mr. Wise, who was responsible for these additions, moved their omission as being unnecessary, and they were struck out. (Conv. Deb., Adel., pp. 967–8.)

Melbourne Session, 1898.—(See Debates, pp. 322–47, 1885–94, 2276–2325, 2419–22, 2453–6. A great part of the debate on this section turned on the question of appeals to the Privy Council; for which see Historical Note to next section.) The general key to the long and complicated debates on this and the following section, and to the numerous amendments suggested, made, and reconsidered, may be found in a short statement of the dilemma that had to be grappled with. Everyone wanted a federal court of appeal; everyone did not wish to abolish the appeal to the Privy Council; and yet no one wished to multiply appeals. The cumulative right of appeal, first to the High Court and then to the Privy Council, would increase the delay and the cost of litigation. The alternative right of appeal, either to the High Court or the Privy Council, would leave two final tribunals. The opinions of the Convention wavered as one or other aspect of this difficulty became more prominent.

A suggestion of the Parliament of New South Wales, that the High Court should only have jurisdiction to hear appeals “where the parties consent,” was negatived, as practically destroying the appellate jurisdiction of the Court; though in the course of the debate, which discussed the relative merits of the High Court and the Privy Council, opinions in favour of an alternative right were expressed. (Conv. Deb., Melb., pp. 322–31; and see Historical Note to next section.)

The omission of the power of Parliament to make “exceptions” to the appellate jurisdiction of the High Court was twice proposed: first by Mr. Glynn (Debates, Melb., pp. 331–2), and afterwards by Mr. Barton (pp. 1885–94), on the ground that it gave


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Parliament too wide and absolute a discretion to cut down the right of appeal. On the other hand, it was argued that to take away the power of exception would go too far, by giving an absolute right of appeal in every trumpery case; and the amendment was accordingly negatived on both occasions. Finally, Mr. Glynn proposed and carried a compromise to the effect that nothing in the section should be construed to prevent the High Court from hearing appeals from the Supreme Court of a State in cases where there now exists a right of appeal from such Supreme Court to the Privy Council. (Debates, pp. 2323–5.) This was ultimately redrafted into the second paragraph of the clause.

Before the Bill was reported a first time, the Drafting Committee, in accordance with an understanding with the Convention, added an appellate jurisdiction from judgments “of the Inter-State Commission.” This caused considerable debate in Committee (pp. 2276–2325). Sir George Turner and Mr. Isaacs, who thought that the questions to be decided by the Commission were political rather than judicial, complained that this gave the control of Inter-State Commerce entirely to the High Court, which was not a tribunal with a suitable knowledge of the questions which would arise. On the other hand it was pointed out that it would not do to make the Commission an irresponsible tribunal, altogether above the Constitution. Mr. Glynn maintained that in the United States the Inter-State Commission was administrative only, not judicial, and that it ought to be the same here. Sir George Turner's amendment to omit the words was negatived; but with a view to meeting his objections the appeal was limited to “questions of law only.”

After the referendum of 1898, both Houses of the New South Wales Parliament included among their suggested amendments a proposal that “the mode of appeal from the Supreme Courts of the States should be made uniform, namely, the appeal should either be to the Privy Council or to the High Court, but not as at present, indiscriminately to either.” The Premier's Conference of 1899, however, declined to recommend any such amendment. (See pp, 217, 220, supra).

Imperial Parliament, 1900.—In the Bill as introduced into the Imperial Parliament, when Clause 74 was omitted, the last paragraph of Clause 73 was detached and placed as new Clause 74. In a schedule of amendments circulated at the time of the second reading, Mr. Chamberlain proposed to insert, after “final and conclusive,” the words “unless the Queen grants special leave to appeal in accordance with section 74;” to restore the last paragraph; and to insert a new Clause 74 allowing an appeal, in questions as to the limits of constitutional powers, by consent of the Executive Governments concerned. (See Hist. Note to sec. 74.) In Committee, however, as part of the final arrangement, this clause was restored to the shape in which it was passed by the Convention.

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