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§ 313. “Upon any Question, Howsoever Arising.”

DECISION UPON A QUESTION.—The appeals forbidden by this section are appeals “from a decision of the High Court upon any question” of a certain character. The distinction should be noted between the phrase “decision of the High Court” in this section and the phrase “judgment of the High Court” in sec. 73. A judgment of the court is its order upon a case; a decision of the court is its finding upon a question of law or fact arising in a case A decision upon a question is not of itself a judgment, but is the basis of a judgment; and one judgment may be based on the decision of several questions.

This section, then, forbids not an appeal from a judgment, but an appeal from the decision of a question. Where a judgment is based upon the decision of several questions, one of which is a question as to the limits of constitutional powers, the section does not forbid the Privy Council to grant special leave of appeal from the judgment; what it does is to forbid the Privy Council from disturbing the decision of the High Court on that particular question. It may be that, apart from the constitutional question, there are other questions of law or of fact which the Privy Council may hold to have been erroneously decided by the High Court, and which are material to the judgment. The Privy Council has power to deal with the whole matter, except that it cannot disturb the decision of the High Court on the constitutional question unless the High Court has ertified that the question ought to be determined by the Privy Council.

AMERICAN ANALOGY.—The provision, which denies to the Privy Council the power of “independent interpretation” of the limits of the constitutional powers of the Commonwealth and the States, bears an interesting analogy to the doctrine laid down by the federal courts in the United States, that those courts have no right of “independent interpretation” of State Constitutions and laws unless national rights or authorities are affected.

“The same reasons which require that the final decision upon all questions of national jurisdiction should be left to the national courts will also hold the national courts bound to respect the decisions of the State courts upon all questions arising under the State Constitutions and laws, where nothing is involved of national authority, or of right under the Constitution, laws, or treaties of the United States; and to accept the State decisions as correct, and to follow them whenever the same questions arise in the national Courts.” (Cooley, Const. Lim. p. 13; and see Burgess, Pol. Sci. ii. 328.)




  ― 756 ―

This Constitution draws no such distinction as between the States and the Commonwealth. The fact that the High Court is made a general court of appeal implies a right of “independent interpretation” of State Constitutions and laws. But as between the Empire and the Commonwealth—that is, as between the Privy Council and the High Court—the right of “independent interpretation” is limited in a way somewhat resembling the American doctrine. It is to be noted, however, that the limitation expressed by the United States doctrine is wider, and it includes the laws as well as the Constitutions of the States.

HOWSOEVER ARISING.—The object of these words is to make it clear that the section refers, not only to questions arising in cases to which the Commonwealth or a State is a party, but also to questions arising in litigation between private individuals. The experience of the United States, as well as of England, shows that the most important constitutional cases have usually arisen in cases between individuals. Thus the great case of Marbury v. Madison—the leading American authority as to the right to obtain a mandamus against a federal officer—was brought by a private citizen against the Secretary of State; and the English case of Ashby v. White—the leading authority upon the maxim “ubi jus, ibi remedium”—was brought by a voter against a returning officer who had refused to allow his vote.

When Mr. Chamberlain's first compromise was suggested (p. 245, supra) doubts were expressed by critics in Australia as to whether the clause (which forbade appeals on questions “howsoever arising” as to the limits of constitutional powers, “unless by the consent of the Executive Government or Governments concerned”) applied to cases where the parties were private citizens. The clause was clearly intended so to apply, but doubts were supposed to arise from the words “Executive Government or Governments concerned,” which might be construed to mean that the Executive Governments must be directly concerned as parties. In the section as it now stands no such doubt exists.

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