§ 319. “Shall be Reserved … for Her Majesty's Pleasure.”

By section 58, any proposed law passed by the Houses of the Federal Parliament may be reserved by the Governor-General for the Queen's assent. By this section, any proposed law limiting the matters in which special leave to appeal may be asked must be so reserved. Even without this express provision, the Governor-General could have safeguarded Imperial interests in this respect by reserving such proposed laws, in the exercise of his discretion, for the signification of Her Majesty's pleasure (see Note,

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§ 267 supra). Even should that safeguard prove insufficient, and the Bill be assented to by the Governor-General, the Queen could always, within one year, exercise her power of disallowance—the supreme check on the enactment of laws invading the prerogative or affecting Imperial interests (sec. 59). The object of embodying this direction in the Constitution itself was to secure a constitutional recognition of the fact that laws of this kind were matters of special Imperial concern; so that, even if the right of withholding the royal assent, in matters of ordinary federal legislation, should fall into comparative disuse, these particular laws should stand upon a different footing.

Original jurisdiction of High Court.

75. In all matters320—

  • (i.) Arising under any treaty321:
  • (ii.) Affecting consuls or other representatives of other countries322:
  • (iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party323:
  • (iv.) Between States, or between residents of different States, or between a State and a resident of another State324:
  • (v.) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth325:

the High Court shall have original jurisdiction326.

UNITED STATES.—The judicial power shall extend to all cases, in law and equity, arising under [this Constitution, the laws of the United States, and] treaties made, or which shall be made, under this authority; to all cases affecting ambassadors, other public ministers, and consuls; [to all cases of admiralty and maritime jurisdiction]; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (Const. Art. iii. sec. 2.)

HISTORICAL NOTE.—The corresponding provision framed and adopted without debate by the 1891 Convention was as follows: —

“In all cases affecting public ministers, consuls, or other representatives of other countries, and in all cases in which the Commonwealth, or any person suing or being sued on behalf of the Commonwealth, or is a party, or in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, and in all cases of controversies between States, the Supreme Court of Australia shall have original as well as appellate jurisdiction.” (These cases, with others, were also recapitulated in a clause defining the jurisdiction which might be given to other federal courts. See Historical Note, sec. 77.)

As framed in the Adelaide session, the clause was divided into sub-clauses; the word “matters” was used to cover all the sub-clauses, in place of “cases” and

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“controversies;” and the sub-clause “arising under any treaty” was added—or rather, transferred from the subjects as to which Parliament had power to give jurisdiction. There was no debate.

At the Melbourne session, part of the debate on the words of this clause occurred on the consideration of a clause defining the “judicial power,” in which these sub-sections were repeated. Some debate was raised on the word “matters.” Mr. Glynn moved the omission of the sub-clause “arising under any treaty,” on the ground that it was outside the proper scope of the judicial power. Mr. Symon explained that the power might be needed, and the sub-clause was agreed to. The sub-clause dealing with “mandamus and prohibition” was struck out, on the ground that it might possibly operate as a limitation, and exclude by implication some other kinds of procedure. (Conv. Deb., Melb., pp. 319–21, 349.) Subsequently, on recommittal after the first report, the matter was re-considered (pp. 1875–85), and Mr. Barton moved the re-insertion of the sub-clause, with the addition of the words “or an injunction.” Mr. Glynn and Mr. Kingston feared that this might allow the judiciary to interfere in matters of politics; but Mr. Symon pointed out that the clause only conferred a jurisdiction, not a right. Dr. Quick and Mr. Isaacs, on the other hand, feared that the enumeration of certain writs might be construed to operate as a limitation. The sub-clause was agreed to. The words “or between residents of different States, or between a State and a resident of another State” were also added at this stage. (Conv. Deb., Melb., pp 1875–85.) After the fourth report the section was verbally amended by the Drafting Committee. (Conv. Deb., Melb., p. 2456.)