§ 318. “The Parliament may make Laws Limiting the Matters in which such Leave may be Asked.”

It would seem that apart from this provision, the Federal Parliament, notwithstanding the assent of the Crown, would have been unable to impose any further limitation on the Prerogative; and tbere is some doubt whether colonial Legislatures generally have such power. In Cushing v. Dupuy, 5 App. Ca. 409, the question of the power of a colonial Legislature to affect prerogative rights was raised, but not decided. In the report of Cuvillier v. Aylwin, in Stuart's R., p. 527, there is a note of Brougham's opinion:—“I am clearly of opinion that no such limitation is valid to bar an appeal to the King in Council. I should greatly doubt if any colonial Act, though allowed by the Crown, if unconfirmed by Act of Parliament (i.e., of the Imperial Parliament) has power to take from the subject this right. But a colonial Act never allowed, can clearly have no effect.” The Canadian Parliament, however, passed in 1888 an Act (51 Vic. c. 43) providing that “notwithstanding any royal prerogative” no appeal should lie to the Privy Council in criminal cases. Exception was taken to this by the Imperial authorities, and though it was not disallowed, it seems to be of doubtful

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validity. (See Bourinot, Fed. Gov. in Can. p. 68 n.; Wheeler, Confed. Law of Can. p. 34.)

When the Commonwealth Bill was before the Imperial Parliament, the Delegates, in their first memorandum (see p. 231, supra) contended that the Legislatures of the Australian colonies already had power to limit the prerogative right of granting leave of appeal.

“The concluding sentence of the clause, it is conceived, confers on the Commonwealth a right to do that which each State at present has power to do, subject to reservation of the Bill as affecting the prerogative, in accordance with the ordinary vice-regal instructions. See Instructions to Australian Governors, dated July, 1892, Clause viii., paragraph 7, under which the Governor is to reserve for the signification of the royal pleasure ‘any Bill of an extraordinary nature and importance, whereby our Prerogative, or the rights and property of our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies may be prejudiced.’ The framers of the Instructions clearly appear to have considered that the colonies had full rights of legislation in such matters as sec. 7, just quoted, sets forth, subject only to reservation for the royal pleasure; and then only when previous instructions upon the particular Bill had not been obtained through one of the principal Secretaries of State, or when the Bill did not contain a clause suspending its operation until the signification of the royal pleasure. The last sentence of the clause, therefore, seems merely to confer on the Federation that legislative power which has long been possessed by each of the constituent States.” (Memo. of Delegates, House of Com. Paper, May, 1900, p. 16.)

The Imperial Government at first objected to this power, but they ultimately acquiesced in the contention of the Delegates. In moving the second reading of the Bill Mr. Chamberlain said:—

“The delegates pointed out to us that this right is inherent in the powers of every Parliament in Australia. The Parliament of every single State in Australia has, in its general powers to make laws for the peace, order, and good government of the country, the power, if it pleases, to make laws limiting the right of appeal, and that power is subject to the right of Her Majesty to disallow or to have reserved any Bill dealing with the subject. The delegates contended that as their Constitution specifically refers to the subjects which alone can be treated by the Federal Parliament, it was necessary specifically to mention this subject, or else the Federal Parliament would have less power than the Parliaments of the constituent States. The reasonableness of that we fully acknowledged, but we felt that if we specifically gave this power by the Constitution we might be assumed to be giving away the right of reservation with regard to this subject. It appears to us to be quite possible that hereafter we might be accused of breach of faith if, when the Federal Parliament had legislated, we had reserved a Bill under the powers given to us in another section of the Constitution.” (Hans., 21 May, 1900, vol. 83, pp. 762–3.)

This provision expressly confers on the Federal Parliament a power in the widest terms to “limit the matters in which such leave may be asked,” and thus, it may be argued, practically to abolish altogether the appeal from the High Court to the Privy Council.

It is to be noted, however, that the power of Parliament to limit the prerogative right only applies to “such leave”—i.e., special leave of appeal from the High Court. The right of appeal from the Courts of the States to the Privy Council—whether as a matter of right or by special leave—cannot be interfered with by the Federal Parliament.

The essence of this provision was contained in an amendment added at Mr. Symon's instance to the words saving the prerogative. Mr. Symon's words were:—“Provided that the right saved is that of granting special leave of appeal, and shall continue only until Parliament otherwise provides.” (Conv. Deb., Melb., p. 2325; Historical Note, supra.) In this form it would have given the Federal Parliament an absolute and direct power over the prerogative right to grant leave of appeal. At the final stage the Drafting Committee altered the provision to the form in which it now stands, and a short debate took place on the effect of the words. (Conv. Deb., Melb., pp. 2453–6.) Mr. Glynn suggested that the clause gave the Parliament power to “abolish appeals” from the High Court to the Privy Council. Mr. Barton explained that the provision gave effect, in a more polite form, to the decision of the Convention. “We cannot give

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the Parliament direct power to interfere with the prerogative—at least we do not think it would be right to do so—but we give the Parliament a power to limit the matters in which a subject may petition for leave of appeal. In that respect we carry out Mr. Symon's amendment. The right to grant special leave to appeal is only to continue until Parliament otherwise provides.” The debate then proceeded as follows:—

MR. SYMON: “The clause as it stands will probably give effect to what has been the intention of the Drafting Committee throughout. I would suggest, however, to Mr. Barton that he should insert some words in clause 74 after the word ‘matters.’ If I may say so, I think this is a more dexterous, and, to use an expression which we have already heard, more mannerly way of putting the power of the Federal Parliament into the clause than before. I would suggest that after the word ‘matters’ the following words be inserted: ‘If any,’ so as to make it clear that the amendment I moved gives this power to the Commonwealth Parliament if they choose to exercise it. They might so limit it as to limit it away altogether. A reader of the clause, who has interest in seeing that the Federal Parliament has this power, might not so readily understand it as it is.”

MR. BARTON: “The hon. member means that if Parliament goes on limiting such matters until the end, and there is only one left, it might leave out that one.”

MR. SYMON: “I do not say that a lawyer would say that.”

MR. BARTON: “I think that would only occur to a lawyer. I think that there is a reasonable construction which a court will have to put upon these words, and that there will be no difficulty.”

MR. KINGSTON: “This will have to be considered by lawyers.”

MR. BARTON: “Of course. I have no doubt as to the construction.”

It appears therefore that the original decision of the Convention was to empower the Parliament to abolish the prerogative right of granting leave to appeal; that this was afterwards passed in “a more mannerly way” by empowering the Parliament, not to forbid the Queen to grant leave, but to limit the matters in which a subject might ask leave; that Mr. Symon wished to make it read “matters, if any”—to make it clear to the lay mind that the power extended to limiting it away altogether; but that Mr. Barton thought there was no doubt about the construction.

The power to “limit the matters” is indeed given in the widest terms; but at the same time the power given is a power to limit, and not to abolish. To limit means “to apply a limit to, or set a limit for; to terminate, circumscribe, or restrict, by a limit or limits.” (Webster's Internat. Dict.) A limit necessarily implies a content—an area within the limit. It is conceived that a law of the Federal Parliament, purporting to abolish the right of asking for leave in all matters whatever, would be outside the scope of the Constitution. On the other hand, the power to “limit the matters” in which leave might be asked could undoubtedly, if Parliament thought fit, be exercised to such an extent as to leave very little for the prerogative right to operate upon.

The power to “limit matters” may be compared with the power to “prescribe exemptions” in sec. 73 (see Notes, § 310, supra). They both enable a right of appeal to be cut down; but they deal with the subject from opposite standpoints. The power to prescribe exceptions contemplates the definition of the excluded area; whilst the power to limit the matters in which leave may be asked seems rather to contemplate the definition of the included or circumscribed area.