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§ 312. “From a Decision of the High Court.”

DECISION.—For the meaning of the words “decision upon any question,” see Note, § 313, infra.

OF THE HIGH COURT.—The section as it stands differs from the Bill as adopted by the Convention in not forbidding appeals from the State Courts to the Privy Council on constitutional questions. The clause as orginally drafted by the Judiciary Committee at the Adelaide session began:—“No appeals shall be allowed to the Queen in Council from any court of a State, or from the High Court, or any other federal court, except,” &c. As redrafted at the Melbourne session, after the third report, and adopted at the fourth report, it began:—“Notwithstanding anything in the last section, an appeal to the Queen in Council from a court of a State, or from the High Court, or from any other federal court, shall not be allowed in any matter,” &c. Before the final stage, it was redrafted to read:—“No appeal shall be permitted to the Queen in Council in any matter,” &c. There was certainly no intention on the part of the Convention to limit the clause to appeals from the High Court, the general words “no appeals shall be permitted” being understood to include appeals from all courts, State or federal.

In some quarters, however, the cause was understood as referring to appeals from the High Court alone; and Mr. Chamberlain's first proposed compromise (p. 245, supra), providing that no question as to the limits of constitutional powers should be “capable of decision except by the High Court,” was objected to by Sir Samuel Griffith, amongst others, on the ground that this was a substantial alteration of the Bill, and a curtailment of a right of appeal from the State Courts to the Privy Council which had been expressly reserved by the Convention. The Chief Justices of all the Australian colonies, being consulted by Mr. Chamberlain, seem to have expressed opinions adverse to any curtailment of the right of appeal from the State courts to the Privy Council; and as a consequence of these representations the clause as finally passed by the Imperial Parliament left this right untouched.

The Convention, therefore, meant that on constitutional questions the High Court should be the sole, as well as the final, court of appeal; but under the Constitution as it stands, any judgment of the Supreme Court of a State may, even if it involves constitutional questions, be appealed from to the Privy Council direct; though, if the appellant chooses to adopt the alternative of appealing to the High Court instead of to the Privy Council, there can be no further appeal to the Privy Council unless the High Court certifies that such an appeal is proper.

This result does not appear to be altogether satisfactory. Whatever view may be taken of the expediency of retaining a right of appeal to the Privy Council in constitutional questions, it would at least seem that the Privy Council ought not to be required to decide any such question without having, for its assistance, the judgment of the highest Court in Australia. As it is, the decision of the High Court on a certain class of constitutional questions is final, unless the High Court certifies, for special reasons, that an appeal ought to be allowed to the Privy Council; but if any such question arises in a Supreme Court of a State, an appeal may be had direct to the Privy Council, passing by the High Court altogether. There is thus a lack of unity in the system of interpreting the fundamental law of the Commonwealth. There is also a lack of consistency; the principle that the interpretation of the Constitution, as between Commonwealth and State, ought to rest with the Australian courts, is affirmed by the provision which makes the decision of the High Court in such cases ordinarily final, and denied by the reservation of the full right of appeal from the State courts to the Privy Council.




  ― 755 ―

This anomaly, however, can, if inconvenience is found to arise, be removed in either of two ways—by the Imperial Government, or by the Federal Parliament. The statutory right of appeal from the State Courts to the Privy Council is defined by the Orders in Council already cited (§ 300, supra); and it is competent at any time for the Queen in Council (i.e., the Imperial Government) to promulgate new orders, abolishing this right of appeal in questions as to the limits of constitutional powers. If that course should not commend itself, the Federal Parliament has power to deal with the matter in another way. Under sec. 76, the Parliament may confer original jurisdiction on the High Court in several classes of cases, including “cases arising under this Constitution, or involving its interpretation.” Under sec. 77, it can confer a similar jurisdiction on any federal court other than the High Court, and can declare the jurisdiction of any federal court (including the High Court), to be exclusive of that belonging to the courts of the States. The Federal Parliament can therefore, by making the federal jurisdiction exclusive in cases arising under the Constitution, ensure that all such cases shall be brought in the first instance into the federal courts, when they will of course be subject to the exclusive appellate jurisdiction of the High Court. That is to say, the Federal Parliament—though it cannot interfere with the right of appeal from the Supreme Courts of the States to the Privy Council—can under sec. 77 reserve to the federal courts exclusive original jurisdiction in cases “arising under the Constitution,” and thus prevent such cases being brought in the courts of the States.

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