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§ 300. “With Such Exceptions and Subject to Such Regulations.”

EXCEPTIONS AND REGULATIONS.—The power to prescribe “exceptions” is the power to limit the jurisdiction by excluding specified cases or classes of cases from it. The power to prescribe “regulations” is the power to regulate the mode in which the jurisdiction shall be exercised. These words give the Parliament power to prescribe both exceptions and regulations. Apart altogether from this section, a power to prescribe regulations is clearly conferred by section 51—xxxix., which empowers the Parliament to make laws with respect to “Matters incidental to the execution of any power vested by this Constitution in … the Federal Judicature.”

The whole appellate jurisdiction is conferred by the Constitution itself, without the need of any intervention by the Parliament. In the absence of any statute prescribing exceptions or regulations, the jurisdiction exists without exception or regulation. This construction, which accords with principle, is now settled with regard to similar words in the United States Constitution. (Durousseau v. United States, 6 Cranch 307; Kent, i. 325; Story, § 1773.) In an earlier decision, however (Wiscart v. Dauchy, 3 Dallas, 321), the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given by the Constitution in a qualified manner. “The Supreme Court was to have appellate jurisdiction, ‘with such exceptions and under such regulations as Congress should make;’ and if Congress had not provided any rule to regulate the proceedings on appeal, the Court could not exercise an appellate jurisdiction.” (Kent, i. 324.) The early Judiciary Acts proceeded on this mistaken principle, and purported to confer jurisdiction affirmatively; but those Acts are now construed not as giving jurisdiction, but as making exceptions by implying a negation of jurisdiction in every case where jurisdiction does not purport to be affirmatively given.

LIMITATION OF EXCEPTING AND REGULATING POWER.—Except as regards appeals from the Supreme Courts of the States in the matters defined in the second paragraph of the section, the power to except and regulate is—as it is in the United States— absolute and unlimited.

“This power of the Legislature over the judiciary is a most serious one. It places the appellate power of the court very nearly at the mercy of the legislature. The legislature has made use of this power in the passage of the several Judiciary Acts, and I do not know that it can be said to have abused it. It seems to me, however, an unnecessary surrender of the independence of the courts to require that things which


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can be better accomplished by the rules of court shall wait upon the pleasure, or, possibly, caprice of the legislature.” (Burgess, Pol. Sci. ii. 331.)

“The Constitution, further, expressly confers upon the Congress the power to regulate the appeal and removal of causes from the Courts of the States, and from the inferior courts of the general government, to the Supreme Court. This is also a discretionary power in the Congress. There is no doubt that Congress is under a stronger moral obligation to act when its action is necessary for the completion and regulation of the government machinery than when it has to deal with questions of policy merely, or even of individual rights; but it is placed under no stronger legal obligations. By inaction it may thus defeat many of the fundamental purposes of the Constitution without any redress, except such as may be secured at the elections.” (Burgess, Pol. Sci. ii. 158.)

The Convention (see Historical Note, supra) took the view that the Parliament ought not to be able to deprive the High Court of an appellate jurisdiction equal to that now exercised by the Privy Council; that no exception or regulation should “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 Commonwealth an appeal lies from such Supreme Court to the Queen in Council.”

The strict language of the Constitution seems to refer rather to the right of the High Court to hear and determine appeals, than to the right of the party to have his appeal heard. The Constitution does not expressly forbid the Parliament to prescribe certain exceptions, but declares that exceptions prescribed shall not prevent the High Court from exercising jurisdiction. It may perhaps be argued that an exception of this kind, if prescribed, might be effective to cut down a party's absolute right of appeal, though it would clearly be void so far as it purported to cut down the right of the High Court to hear the appeal, if it thought fit. And it might also be argued that this construction would not be inconsistent with the object of the provision, which aims, not at securing an absolute right of appeal, but at making the jurisdiction of the High Court, within defined limits, independent of Parliamentary interference. It does not seem, however, that this distinction was present to the minds of the framers of the Constitution.

The reference to matters “in which at the time of the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council” makes it necessary to ascertain and define those matters.

It is conceived that the provision refers only to those cases in which, at the establishment of the Commonwealth, an appeal may be brought as a matter of right. The Queen has a prerogative right (see § 310, infra) to review the decisions of all colonial courts, civil and criminal, unless this prerogative has been annulled by charter or statute; but to construe the above provision of the Constitution as extending to this prerogative right of appeal would make it include every decision of the Supreme Courts of the States, and would therefore make the words “in any matter in which … an appeal lies,” &c., mere surplusage.

“An appeal cannot be brought as a matter of right unless the value of the matter actually in dispute in the appeal be such as has been fixed by law for the particular tribunal from which the appeal is brought.” (Macpherson, Privy Council, p. 1.) The appealable amount for appeals from the Supreme Courts has been fixed by Orders in Council made at different times.

From the Supreme Court of New South Wales, by Order in Council of 13th November, 1850, any party may appeal to the Queen in Council from any final judgment, decree, order, or sentence of the Supreme Court, “in case any such judgment, decree, order, or sentence shall be given or pronounced for or in respect of any sum or matter in issue above the amount or value of £500 sterling, or in case such judgment, decree, order, or sentence shall involve directly or indirectly any claim, demand, or question, to or respecting property or any civil right, amounting to or of the value of £500 sterling..”




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The same appealable amount is fixed with regard to the Supreme Court of Victoria by Order in Council of 9th June, 1860; with regard to the Supreme Court of Queensland by Order in Council of 30th June, 1860; with regard to the Supreme Court of South Australia by Order in Council of 10th May, 1860; with regard to the Supreme Court of Western Australia by Order in Council of 11th October, 1861; with regard to the Supreme Court of New Zealand by Order in Council of 9th June, 1860. With regard to the Supreme Court of Tasmania the appealable amount is, by Order in Council of 4th March, 1851, fixed in similar terms at £1000 sterling. (See, for particulars of these several Orders in Council, Macpherson, Privy Council, Appendix.)

To cases within these Orders in Council, therefore, the power to make exceptions, and so exclude an appeal from the Supreme Court of a State to the High Court, will not apply. That is to say, the Federal Parliament cannot exclude appeals from final judgments of the Supreme Courts of the States for matters in issue of the value of £500, or where any property or civil right of the value of £500 is involved (or, in the case of Tasmania, £1000). But the Parliament may exclude or allow an appeal as to all interlocutory orders, or as to final judgments where the amount involved is less than the appealable amount, or in criminal and other cases where no property, or civil right having a money value, is involved.

The limitation on the power of Parliament to prescribe exceptions and regulations applies only to the specified appeals from the Supreme Courts of States. Consequently the excepting power is unlimited with regard to appeals (1) from Justices exercising the original jurisdiction of the High Court; (2) from other federal courts, or courts exercising federal jurisdiction; (3) from State Courts (other than the Supreme Courts) from which an appeal lies to the Queen in Council; (4) from the Inter-State Commission; and (5) from the Supreme Courts of the States, in matters in which, at the establishment of the Constitution, an appeal did not lie to the Queen in Council. With regard to such appeals the appellate jurisdiction is, in the words of Burgess, “very much at the mercy of the Legislature.”

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