§ 320. “In all Matters.”

ALL.—One important difference between this section and the corresponding section of the United States Constitution is that the word “all” applies to every sub-section; whereas in the United States Constitution part of the section extends “to all cases” and part “to controversies”—not all controversies. Interpretation in the United States has turned on this distinction (see Martin v. Hunter's Lessee, 1 Wheat. 304; Story, Comm., § 1748; Kent, Comm., i. 318.)

MATTERS.—The word “matters” was chosen by the Judiciary Committee at Adelaide as the widest word to embrace every possible kind of judicial procedure that could arise within the ambit of the section. (See Conv. Deb., Melb., pp. 319–20.) The United States Constitution uses two expressions—“cases in law and equity,” and “controversies.”

“The Supreme Court has defined the phrase, ‘case in law or equity,’ to mean the submission of a subject to the judicial department by a party who asserts his rights in the form prescribed by law, i.e., ‘a suit instituted according to the regular course of judicial proceedings,’ and has distinguished cases from controversies by the limitation of the latter term to civil suits. According to this distinction, the Constitution has conferred no criminal jurisdiction upon the United States Courts wherever it denominates the suit a controversy.” (Burgess, Pol. Sci., ii. 325.)

The word “matters” is used in the Privy Council Act, 3 and 4 Will. IV. c. 41, which empowers the Judicial Committee (in addition to its functions as a court of appeal from inferior courts of law) to hear or consider “any such other matters whatsoever” as the Crown thinks fit to refer to it. “It has, however, been decided that this clause will not justify a reference to the Judicial Committee of anything whatever that could not be properly entertained by, or come before, the Crown in Council. For example, this Committee could not advise upon questions of general or political policy, for that is the especial province of the Cabinet council; neither could it advise in criminal matters, in which, except in certain colonial cases, no appeal to the Privy Council is allowed by law.” (Todd, Parl. Gov. in Colonies, pp. 305–6. See Hans. Deb. vol. 209, pp. 977, 984.)

EXTRA-JUDICIAL OPINIONS.—The important question arises whether any power exists or can exist under the Constitution for the Parliament or the Executive to refer to the

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Court, for its opinion, questions not actually arising in the course of any judicial proceeding. The subject of extra-judicial opinions is one of considerable constitutional importance, and reference may be made to English, American, and Canadian constitutional practice.

In England, till the end of the 17th century, it was not uncommon for the King to ascertain the opinions of his Judges on a question before it came judicially before him. (See Broom, Const. Law, pp. 143–6.) This objectionable practice of extra-judicially anticipating judicial decisions in cases pending in the courts was generally condemned by jurists as tending to sap the independence and impartiality of the Bench, and has fallen completely into disuse. The House of Lords, however, when sitting in its judicial capacity, may still submit to the Judges questions bearing on any case sub judice; and even when sitting in its legislative capacity, it may constitutionally propound to the Judges abstract questions of law. (Broom, Const. Law, p. 147.) Thus before the passing of Fox's Libel Act, in 1792, a series of questions relating to the existing law of libel were submitted to and answered by the Judges. The Judges will, however, decline to answer a question put by the House of Lords, unless it is confined to the strict legal construction of existing laws. Re Westminster Bank, 2 Cl. and F. 191, where the Judges declined to answer a question whether the provisions of a certain Bill then before the House were consistent with the statutory rights of the Bank of England.

In the United States, the strict separation of the judicial from the other departments makes it unconstitutional for the Courts to perform extra-judicial duties.

“By law the President possesses the right to require the written advice and opinions of his cabinet ministers upon all questions connected with their respective departments. But he does not possess a like authority in regard to the judicial department. That branch of the Government can be called upon only to decide controversies brought before them in a legal form; and therefore are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the executive.” (Story, Comm. § 1571; and see Bryce, Amer. Comm., i. 257.)

“The functions of the Judges of the Courts of the United States are strictly and exclusively judicial. They cannot therefore be called upon to advise the President in any executive measures, or to give extra-judicial interpretations of law, or to act as Commissioners in cases of pensions or other like proceedings.” (Id. § 1777.)

Thus in Hayburn's Case, 2 Dall. 409 (and see ibid. 410–412) an Act assigning ministerial duties to the Circuit Courts was held to be unconstitutional, and it was laid down that Congress cannot constitutionally assign to the judicial power any duties which are not strictly judicial. In Dewhurst v. Coulthard, 3 Dall. 409, while an action was pending in a circuit court, the opinion of the Supreme Court was prayed on an agreed statement of facts; but the Court declared that it could not take cognizance of any suit or controversy not brought before it by regular process of law.

The Constitutions of some of the American States expressly provide for extra-judicial opinions on the validity of proposed laws; but in the absence of such provision the State Courts have held that the separation of powers implicitly prohibits advisory opinions. (Amer. and Eng. Encyc. of Law, 2nd Ed., vi. 1067.)

“In a few of the States, indeed, the legislative department has been empowered by the Constitution (i.e., of the State) to call upon the courts for their opinion upon the constitutional validity of a proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it. But those provisions are not often to be met with, and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be under such calls, without the benefit of argument at the bar, and of that light upon the questions involved which might be afforded by counsel learned in the law, and interested in giving them a thorough investigation.” (Cooley, Const. Lim. 40.)

In Canada it is provided by a Dominion statute (54 and 55 Vic. c. 25, s. 4) that “important questions of law or fact touching provincial legislation … or touching the constitutionality of any legislation of the Parliament of Canada, or touching any

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other matter with reference to which he sees fit to exercise this power,” may be referred by the Governor in Council to the Supreme Court for hearing. Persons interested are entitled to be notified and to be heard by counsel, and the Judges must give their reasons; but the opinions of the court are advisory only, although they are appealable to the Privy Council. Ontario has a similar enactment. (See Wheeler, Confed. Law in Canada, pp. 394–5, 401–2, 405–6.)

Under this Constitution it is clear that, as in the United States, the functions of the federal Justices are “strictly and exclusively judicial,” and that no duties can be cast upon them of an essentially extra-judicial kind. (See Notes to sec. 81.) They cannot be called upon to advise on questions of a political nature, or as to the constitutionality of proposed legislation. But whether they could be called upon by the Parliament—or by the Executive acting under a law of the Parliament—to deliver opinions on the “strict legal construction of existing laws,” is a more difficult question. The answer seems to depend on the scope and meaning of the word “judicial.” Would such opinions be judicial, or extra-judicial? The true answer would seem to be that the function of advising on a matter of law, where there is no regular judicial proceeding before the Court to declare the rights of parties, or to enforce remedies, is no part of the duty of a Judge, and is not contemplated in the gift of the judicial power. In England, the advisory duties of the Judges were very exceptional, and only exercised, by virtue of ancient custom, at the request of the House of Lords—itself a judicial as well as a legislative body. In the Australian colonies no such practice is known; whilst the advisory duties which are cast upon the Canadian judges by statute are clearly extra-judicial. The giving of advisory opinions “is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority.” (Prof. J. B. Thayer, article on the Origin and Scope of the American Doctrine of Constitutional Law, 7 Harvard L. Rev. 129, 153; cited Kent, Comm. I. 296.)

“Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity for the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.” (Per Brewer, J., Chicago and Grand Trunk R. Co. v. Wellman, 143 U.S. at p. 345.)

The argument from policy is very strong in support of this view. Ex parte interpretations of the law, without the thorough examination of interested parties and their counsel, are apt to be unsatisfactory and unauthoritative. It might indeed happen that the persons interested might be represented and heard upon a reference; but the practice would be, at least, open to serious abuse. The one advantage it would have—that of obtaining a prompt decision upon questions which are in doubt, but which no one is ready to litigate—is more than balanced by other considerations. The Judges would be liable to be hindered in the discharge of their appropriate duties by being employed, in a manner, as the law advisers of the Crown—a position which might lead to the undesirable entanglement of the Bench in political matters. Seeing that the Supreme Court is not solely the servant of the Federal Government, but is also the final arbiter between the Commonwealth and the States, it is of the highest constitutional importance that it should interpret the scope of its judicial duties in the strictest possible way.

Nor do the debates of the Convention justify the supposition that it was intended to permit such a practice. In the Bill of 1891 the jurisdiction of the Federal Courts was confined to “cases” and “controversies,” as in the United States. The Judiciary Committee at Adelaide substituted the word “matters,” with a view, not of extending the scope of the clause to extra-judicial opinions, but of including every kind of judicial

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process, whether civil or criminal, and whether there were opposing parties or not. At Melbourne (Debates, 319–20) Mr. Isaacs and Dr. Quick raised this very question. Mr. Symon (Chairman of the Judiciary Committee) replied:—

“We want the very widest word we can procure in order to embrace everything that can possibly arise within the ambit of what are comprised under the sub-section. … I think we are using the best word here. The word ‘matters’ merely indicates the scope within which the judicial power is to be exercised, but no matter can be dealt with until it comes before the authorities in the form of a case or some judicial process which will be regulated by the Judiciary Acts. It does not strike me that the word is too wide.”

Mr. Barton added:—“I think the word ‘matters’ means such matters as can arise for judicial determination.” (See also Conv. Deb., Melb., p. 1680.)