§ 309. “The Conditions of and Restrictions on Appeals.”

By “conditions of appeals” seems to be meant the conditions or requirements which have to be satisfied before an appeal is admitted, the terms on which leave will be given, and the terms on which its prosecution will be allowed; by “restrictions on appeals,” the limitations as to the judgments from which an appeal will lie, the appealable amount, the time for appealing, and so forth. Both expressions, from different points of view, must at least be construed to extend to so much of the rules and practice of the several Supreme Courts and of the Privy Council as go to the questions whether leave to appeal can be given, on what terms it ought to be given, and subject to what conditions it ought to be prosecuted. How far the words incorporate the rest of the existing practice and procedure of Privy Council appeals may be a matter of some doubt; but it would certainly be prudent on the part of litigants to conform to that practice in every possible way.

The effect of the provision is practically to adopt, as a piece of preliminary federal legislation, separate codes of rules to govern appeals to the High Court from each State. As a matter of fact, these separate codes are to a great extent identical, so that there will from the outset be a considerable degree of uniformity; but complete uniformity can only be secured by federal legislation.

The Parliament has power, under this section, to prescribe exceptions to, and regulations for, the right of appeal. By virtue of the words “until the Parliament otherwise provides,” it has also (sec. 51—xxxvi.) power to legislate as to “conditions of and restrictions on appeals;” but the latter power seems to be wholly included in the former. The Parliament also has (sec. 51—xxxix.) power to legislate on matters incidental to the execution of any part of the judicial power. It therefore has full power to regulate the right of appeal, both by direct legislation, and by empowering the Judges of the High Court to frame rules of practice and procedure.

In the meantime, appeals from the Supreme Court of any State to the High Court will be subject, under this section, to the same “conditions and restrictions” as appeals from such Court to the Privy Council. For information as to these, the reader is referred to Macpherson's Practice of the Privy Council, and to the text-books on the practice of the Supreme Courts in the several colonies.

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Appeal to Queen in Council310.

74. No appeal shall be permitted311 to the Queen in Council from a decision of the High Court312 upon any question, howsoever arising313, as to the limits inter se of the Constitutional powers314 of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify315 that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative316 to grant special leave of appeal from the High Court to Her Majesty in Council317. The Parliament may make laws limiting the matters in which such leave may be asked318, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure319.

CANADA.—The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any court of appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard; saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative.— Dominion Statute, 38 Vic. c. 2, sec. 47 (establishing Supreme Court).

HISTORICAL NOTE.—The Commonwealth Bill of 1891 provided that the Federal Parliament might require that any appeals which have hitherto been allowed from the State Courts to the Queen in Council should be brought to the Federal Supreme Court. The judgment of the Supreme Court was to be final, but the Queen was to have some power to grant leave of appeal to herself “in any case in which the public interests of the Commonwealth, or of any State, or of any other part of the Queen's dominions, are concerned.” The limitation of the prerogative right to grant leave of appeal was objected to by Mr. Wrixon, who moved the omission of the words, but the amendment was negatived on division. (Conv. Deb., Syd., 1891, pp. 785–7 [and see Historical Note, sec. 73].)

Adelaide Session, 1897 (Debates, pp. 968–89, 1202).—The clause as framed at the Adelaide Convention prohibited any appeal to the Privy Council, either from the State Courts or the federal Courts, “except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of Her Dominions, are concerned, grant leave of appeal to the Queen in Council from the High Court.” This meant that appeals from the State Courts direct to the Privy Council were to be abolished altogether; that there was to be no appeal “as of right” from the High Court to the Privy Council; and that the Queen's right to grant leave of appeal was to be limited to the cases specified.

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A proposal by Sir George Turner to omit the words “in any matter in which the public interests, &c.… are concerned,” and so leave a right to grant leave of appeal in all cases, was negatived by 17 votes to 14. A general debate on the clause followed. Sir Edward Braddon and Sir Joseph Abbott appealed strongly for the retention of an appeal to the Privy Council, on the grounds that this was one of the last links with the Empire, that it represented the right of the people of Australia to approach the throne, and that the decisions of the Privy Council would command greater respect than those of the High Court. On the other hand, Mr. Symon and Sir John Downer led the argument in favour of a final federal court of appeal. The clause was eventually carried by 22 votes to 12.

Melbourne Session, 1898 (Debates, pp. 333–48, 2286–2341, 2415–9; 2453–6).—A suggestion by the Legislative Councils of New South Wales and Victoria to omit (in the preceding section) the words making the judgment of the High Court “final and conclusive” was negatived (Debates, p. 333). No one attempted to argue that there should be an appeal from the High Court to the Privy Council “as a matter of right,” and the retention of these words embodied the decision of the Convention that—whatever right might be reserved to the Queen (i.e., the Privy Council), to grant leave of of appeal “as of grace”—the parties should have no absolute right of appeal.

Sir George Turner, however, while not wishing to make the right of appeal to the Privy Council absolute, wished to vest in the High Court itself, as well as in the Queen in Council, a power to grant leave of appeal; and accordingly he moved to add, after “final and conclusive,” the words “saving in cases where an appeal may be allowed either by the Queen in Council or the High Court.” Mr. Wise proposed to amend this suggestion so as to read “saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her royal prerogative”—thus placing the prerogative right of granting leave to appeal on the basis of the Canadian Act of 1875. Mr. Symon opposed this, and wished to take away the prerogative right altogether, on the ground that the Privy Council, as a court of appeal for the colonies, was “an anachronism and an absurdity.”

Mr. Wise's amendment of Sir George Turner's proposal was agreed to, but when the amended proposal was put to the vote it was easily defeated (pp. 333–47). All these proceedings took place in connection with the words “final and conclusive” in the preceding clause. The “Appeals to Privy Council” clause was immediately afterwards passed without amendment; so that the result was that at this stage the question of appeal was left precisely as it had been at Adelaide. (Conv. Deb., Melb., pp. 333–48.)

The whole question came up again on recommittal after the second report (pp. 2286–2341). Sir Joseph Abbott moved again that after “final and conclusive” (in the preceding section) should be added the words “saving any right that Her Majesty may be pleased to exercise by virtue of Her royal prerogative.” The whole question of appeal to the Privy Council was debated over again, the argument in its favour being now supported by a number of petitions from various Chambers of Commerce and Manufactures, and other associations representing mercantile interests. Mr. Symon again led the opposition to the amendment, while Mr. Carruthers supported it. Mr. O'Connor pointed out that the question was not that of abolishing appeals to the Privy Council, because the following clause expressly allowed them in certain cases; it was a question of limiting them. He could see no consistency in the limitation as it stood, because it allowed an appeal to the Privy Council in the very cases which were specially of a kind to be finally decided in Australia—cases, namely, in which the interpretation of the Constitution was involved; and he announced himself ready to support a proposition to the effect that no appeal to the Privy Council should be allowed in those cases; a suggestion which Mr. Kingston also heartily approved. (For an earlier suggestion to the same effect, see a paper read by Mr. R. R. Garran before the Australasian Association for the Advancement of Science, Proceedings, 1895, p. 694.) Eventually, Sir Joseph Abbott's amendment was carried by a majority of one. A

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proviso was then added, on Mr. Symon's motion, “that the right saved is that of granting leave to appeal, and shall continue only until Parliament otherwise provides.”

The above debate was on the preceding section. On the consideration of this section (“Appeals to Queen in Council”) Sir Joseph Abbott moved the omission of the limiting words “in which the public interests . ...are concerned.” This was agreed to without division; and then Mr. Symon proposed to insert, in place of the words omitted, “not involving the interpretation of the Constitution of the Commonwealth or of a State.” This, at Mr. Barton's suggestion, was amended by adding the words “or in any matter involving the interests of any other part of Her Majesty's dominions;” the intention being to allow an appeal in every case in which some other part of the British dominions was concerned, notwithstanding that the interpretation of the Constitution of the Commonwealth or of a State might be involved. After debate, Mr. Symon's amendment, as amended, was carried by a majority of four. (Conv. Deb., Melb., pp. 2325–35.)

Mr. Symon next moved an amendment providing “that no appellant to the High Court shall afterwards appeal to the Privy Council in the matter of the same appeal,” the intention being that when an appellant had elected to go to the High Court instead of to the Privy Council direct, he should be bound by its decision; though the respondent, who had had no right of election, might appeal from the decision. There was a strong feeling in the Convention that some such provision would be desirable; but finally, on the suggestion that the Drafting Committee should endeavour to carry out this idea, Mr. Symon withdrew his amendment. No such provision, however, was afterwards incorporated in the Bill. (Conv. Deb., Melb., pp. 2336–41.)

On recommittal after the third report, Mr. Barton brought up the redraft of the Drafting Committee. Mr. Glynn then moved a further amendment in order to prevent appeals direct from a State Court to the Privy Council, to preserve the prerogative right of appeal to the Privy Council in all cases—whether constitutional or not—and to prevent that right from being cut down by the Parliament. This was negatived on division by a majority of three. (Conv. Deb., Melb., pp. 2415–22.) Some final drafting amendments were made after the fourth report.

Imperial Parliament.—In the Bill as introduced into the Imperial Parliament, clause 74 was omitted altogether, and in covering clause 5 were inserted words preserving the prerogative of appeal with respect to all decisions of the High Court and of the Supreme Courts of the States. (See pp. 242, 346, supra.)

To meet the protests of the Delegates, Mr. Chamberlain afterwards proposed a new clause allowing an appeal from decisions of the High Court on questions as to “the limits inter se of the constitutional powers” of the Commonwealth and the States, or of any two or more States. (See p. 245, supra.) To meet criticisms from the Delegates and from Australia, this clause was subsequently redrafted. (See p. 247, supra.) Finally, the clause as it now stands was suggested by Mr. Chamberlain, and agreed to by the Governments of the colonies; and in Committee the Bill was amended accordingly. (See pp. 247–9, supra.)