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14. Chapter XIV. The Judicature.

THE objects of the national judiciary in the Constitution of the United States—objects of paramount importance and fundamental to free government—are stated by Story to be, first a due execution of the powers of government, and secondly, a uniformity in the interpretation and operation of those powers and of the laws enacted in pursuance of them; and to the attainment of these ends, the national judiciary ought to possess powers co-extensive with those of the legislative department, and must be so organized as to carry into complete effect all the purposes of its establisment.note

These objects are effected in the Commonwealth Constitution.

Judicial power is an essential element in government and the administration of law; and in a composite government with its inevitable conflicts, there must be some provision which shall ensure finality both in enforcement and interpretation of the law. This practically implies a central judicature which shall be supreme, for the Courts of the States, whatever their learning, wisdom, and good faith, however free from all imputation of bias, must nevertheless frequently differ so as to make uniformity impossible, while the mere co-ordination of a federal and state judiciary would simply add to the confusion of authority. In Canada, though the Provinces constitute, organize and maintain the Provincial


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Courts, the Dominion Government appoints, pays and if necessary removes the Judges of the Courts in the Provinces and has established over all a Supreme Court with appellate jurisdiction, and various other Courts for the better administration of the Laws of Canada (British North-America Act, 1867, sec. 101). It must be remembered, too, that the Dominion control over Provincial legislation, and the grant of exclusive powers to each were devised with a view to minimising occasions of conflict. In the Commonwealth, as in the United States, consistently with the principle of State autonomy, the States continue to control their judiciary, and hence it is essential that the Commonwealth powers should be enforced and guarded by an independent judiciary. On the other hand, if the States are to be secure against the intrusion of the Commonwealth organs, it is equally clear that the Commonwealth Judiciary should not be readily subject to the pressure or control of the Commonwealth Legislature or Executive.

The Commonwealth Judiciary is not the mere auxiliary of the Parliament and the Executive Government; it has, like them, an independent duty, but only within its own sphere of judicial power, to uphold and maintain the Constitution against all attack, whether from the Commonwealth Executive or Legislature or the State Governments. If we ask, whence comes this duty of the Courts to determine whether the Commonwealth or the State Parliament has exceeded its powers, we shall hardly find an answer in the Constitution itself. Nor shall we find the explanation in the essential nature of the federal principle, or of the “written constitution.” In Germany the relation of the Courts to Imperial and State legislation is a matter of dispute; but there is every authority for saying that the Legislature must be the interpreter of its own powers, as it is in France and Belgium where the Constitution affects to bind the Legislature. Conformity to the Constitution in Switzerland is obtained by a method in entire harmony with the political ideas of that country: federal laws are not subject to


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review in the Courts, but may be challenged by 30,000 citizens or eight Cantons. Cantonal laws, on the other hand, are subject to review in the Federal Courts; but, consistently with the doctrine of the independence of the Legislature in its own sphere, their validity cannot be questioned in the Courts of the Cantons. The system under which the valid exercise of legislative power is treated as a judicial question belongs to the history of the relation of courts of law to public power. In the reign of James the First the Courts succeeded in making good their claim to entertain legal causes, though they involved the prerogatives of the Crown, whether in the nature of property or executive power. Thus they effectually prevented the establishment of any practical distinction in the administration of public and private law; and if, on the one hand, questions of power are treated judicially in suits between individuals, it is not to be forgotten that all justice is with us “public justice,” and that the term “private justice” is not known amongst us. If executive power was thus a subordinate power subject to judicial review, it was by no means clear that legislative power was not subject to the same control, and there were dark hints of Acts of Parliament which had been declared invalid, or at any rate might be so declared. The supremacy of Parliament, however, became unmistakeably established. But there were other legislatures as clearly subordinate. The American Colonies held charters of government from the Crown; and were constantly reminded that they must keep within the terms of the grant. Control by forfeiture of charter, by Act of Parliament, by judicial proceedings, and an ultimate appeal to the Privy Council, whose action might be referred now to one, now to another of its high functions—these were the constitutional checks with which the colonies were familiar. A subordinate legislature being within the experience of all, the Revolution, though it removed some of the external checks, established a form of government which emphasized the subordinate character.


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It was not readily assumed in the Federal Constitution, that the judicial power in the Courts would be all-sufficient to deal with the possibilities of conflict. In the Philadelphia convention it was successively proposed that the general government should have a negative on all the legislation of the States—the power which eighty years later was given to the general government in Canada; that the Governors of the States should be appointed by the United States, and should have a negative on State legislation—a condition also established in Canada; that a Privy Council to the President should be appointed, composed in part of the judges; and that the President and the two Houses of Congress might obtain opinions from the Supreme Court. But these expedients were discarded; the Constitution and the laws of Congress were declared the supreme law of the land and binding on the judges of the several States. It was not without some hesitation on the part of the Courts, and some resistance on the part of the Legislatures, that the further steps were taken by the Courts of holding, in the case of both the States Constitutions and the Federal Constitution, that the Courts must, as a matter of judicial duty, hold invalid laws which were inconsistent with the distribution of powers within the respective governments.

It is interesting to observe how questions similar to those which agitated the framers of the United States Constitution were dealt with by the Australian Convention. In the early history of the Australian colonies, the Legislature and the Supreme Court were brought into curiously close relation by the part which was assigned to the Chief Justice in the Legislative Council of the Governor of New South Wales by 4 Geo. IV., c. 96, sec. 29; and by the compulsory submission of all Acts of the Legislative Councils to the Supreme Court for the consideration of their validity under 9 Geo. IV., c. 83, sec. 22. But these examples did not influence the deliberations of the Convention. The members of the Convention were, however, thoroughly acquainted with the prevalence and the nature of judicial control as developed in the United


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States, a control experienced in some small degree by the colonies themselves, notably in the early days of responsible government in South Australia. The tendency was, in fact, rather to exaggerate than to underrate the controlling power of the courts. In general, the power was regarded with singularly little jealousy or suspicion, a phenomenon entirely in accord with the tendency of the day to submit to judicial authority problems which are more economical or political than legal. Two substantive proposals were submitted as to unconstitutional laws. In the first place, it was moved that when any law passed by the Commonwealth Parliament was declared ultra vires by any decision of the High Court of Australia, the Executive might, upon the adoption of a resolution by absolute majorities in both Houses, or, as was suggested, in one House alone, refer the law to the electors for their approval. The other proposal was of a more sweeping kind. It was to the effect that the plea that a law of the Commonwealth or of a State was ultra vires should not be raised in any Court, except, in the case of a Commonwealth law, by or on behalf of any State, or, in the case of a State law, by or on behalf of the Commonwealth, but without prejudice to the power of the Courts in any litigation to deal with conflicts of Commonwealth and State law. The proposal received no support, and the maintenance of the individual right to impugn laws is the more significant because in other respects the Constitution differs markedly from the Constitution of the United States in not establishing rights of individuals against governmental interference.

The duty of passing upon the validity of Acts, whether of the Commonwealth or of the State Parliament, exists purely as an incident of judicial power. It belongs not to any one Court, or any system of Courts, but to all Courts within the Commonwealth whatever their degree, whenever in a matter in litigation before them some Act of the one Legislature or of the other is invoked. It is the duty of every Court to administer the law, of which the Constitution is a part, and a superior part. “The judges of the United States control the action of the Constitution, but they perform


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purely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The Court never directly pronounces any opinion whatever upon an Act of Congress. What the Court does do is simply to determine that in a given case A is or is not entitled to recover judgment against X; but in determining that case the Court may decide that an Act of Congress is not to be taken into account, since it is an act beyond the constitutional powers of Congress.”note No principle is better established than that the Courts will not consider the validity of a Legislative Act except at the instance of one whose rights are touched by such Actnote; and the case must be one in which the Courts can afford relief. Many of the provisions in the Constitution of the Commonwealth, as in the Constitution of the United States, are outside the scope of judicial sanctions. In a dependent community such “political” matters are fewer than in an independent political society; but reference has been made to several examples in the course of this work.

It is possible of course that the principle object of a suit may be to obtain a judgment upon the constitutionality of a Statute. The immediate matter in dispute may be trifling in amount; but the suit is a “test case.” That is no ground upon which the Court can refuse jurisdiction. But it must be a real and not a fictitious suit; the Courts will not permit issues on feigned facts. Between these cases lies the “friendly” or “collusive” action, i.e. one in which are present all the facts which ordinarily give jurisdiction to the Courts and raise an issue, but the suit is a “friendly” one, and there is a substantial identity of interest of the parties, or the acts which give rise to the action have been done for the purpose of creating an issue to


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be tried. Such a course is not uncommon; in England and the colonies some of the most important constitutional questions have been determined in collusive actions. It is obvious that as authorities such cases may rightly be regarded with suspicion, but the Supreme Court of the United States has gone the length of declaring that the Courts will not in such a cause consider the validity of a Statute. In 1891, in the Chicago and Grand Trunk Railway Company v. Wellman,note the Court said: “The theory upon which apparently this suit is brought is that the parties have an appeal from the legislature to the Courts; and that the latter are given an immediate and general supervision of the constitutionality of the former. Such is not true. 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 in the determination of real, earnest, and vital controversy between the individuals. It never was 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.” The English practice seems more favourable to friendly suits, if at any rate they are brought and conducted in good faith. In Powell v. Kempton Park Racecourse Company,note the suit was avowedly a friendly suit, the purpose of which was to obtain a decision of the highest judicial tribunal as to the construction of an Act of Parliament. It is true that to ask the Court to construe an Act of Parliament is not quite the same thing as to ask the Courts to declare that a State Statute is invalid, but each is the judicial determination of a question of law in a


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matter where the parties have rights. Lord Halsbury said (p. 157), “I think it is right to say that in my view it is absolutely immaterial what motive has induced the plantiff to bring this action. Once it is brought, the Court before whom it comes must decide according to law, and the construction of an Act of Parliament is a pure question of law, and must be decided according to its legal construction whatever may be the motives and wishes of the respective litigants.” And Lord James of Hereford said (p. 190), “It seems clear that the action was brought in good faith for the purpose of obtaining an authoritative and final judgment. Probably the plantiff will regard with satisfaction his want of success in the action. But the judgment whatever it may be will and must be acted upon. This therefore is not a case where the judgment of a judical tribunal is sought for the purpose of determining a right for mere abstract purposes.”

The consideration of constitutional questions purely as an incident of judicial power has one great advantage; “The judicial control”—Mr. Bryce objects to the expression altogether—is exerted with the least possible amount of friction. But it has two considerable effects. The practical importance of a decision of the Courts lies in its authority as precedent; and it may well be for the public interest that a cause involving great constitutional questions should not be left wholly in the hands of the parties. The parties may not be able to command the best legal assistance, or they may be content with the decision of a Court which is not the court of ultimate appeal. These inconveniences may of course be mitigated by the public authority concerned taking up and carrying on the case,note


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or by the intervention of such authority as an interested third party where the circumstances admit it. In the case of St. Catharines Milling and Lumber Company v. Reg note (on the information of the A.G. for Ontario), the claim of Ontario in respect to certain lands was resisted on the ground that they were the property of the Dominion; and in granting leave to appeal, the Judicial Committee provided that, as the case raised large questions of right between the Province and the Dominion, the Dominion should be at liberty to intervene.

The other defect of the system belongs to the accidental character of litigation,note an inconvenience which belongs to all judiciary law. In England the authority of Parliament is now available to settle disputed questions of law. But this was not always the case; Parliament was normally divided rather than united, and Parliamentary action requires unity. The great importance of judicial determinations in the seventeenth century lay in the fact that as the disputes concerned the powers of the constituent parts of Parliament, itself, these parts could not co-operate to settle or change the law. The opinion of the judges, whether judicially or extra-judicially expressed, was a powerful weapon, which the king was eager to turn to his own advantage. He was not disposed to wait nor did law or custom then require him to wait, until litigation should arise. In a Federal Constitution, the circumstances are somewhat analogous. The Constitution is in no case readily alterable; it is quite likely that the very nature of the dispute precludes the necessary co-operation of powers. In any case there may be many uncertainties which may embarrass the Government and paralyse its action. The Government desires to know not whether they have done right, but whether they may do this or that thing. Very


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early in the history of the United States Constitution, the judges of the Supreme Court had to decide upon their attitude towards questions of law addressed to them by the Executive. In 1793, Washington sought the opinion of the judges of the Supreme Court as to various questions arising under treaties with France, but after some delay the judges, “considering themselves merely as a legal tribunal for the decision of controversies brought before them in a legal form, deemed it improper to enter the field of politics by declaring their opinion on questions not growing out of the case before them.”note In several of the States of the Union, the Constitutions have provided that the judges shall give opinions when called on by the Executive or the Legislature. Such opinions are never regarded by the judges themselves as authoritative, and may be departed from by the Courts even when constituted by the judges who have given the opinion; they are given under an obvious disadvantage, since the judges have not the assistance of the arguments of counsel. In Canada, by the Supreme Court Act, 1875 (R.S.C., c. 135), extended by 54 & 55 Vict. c. 25. the Governor-General in Council may refer to the Supreme Court various specified matters including questions touching Provincial legislation and the constitutionality of any legislation of the Parliament of Canada, and generally any other matter with reference to which the Executive sees fit to exercise this power; and in certain limited cases, the Senate or House of Commons may seek the assistance of the Court. These references are modelled closely upon the form of judicial proceedings. It is the duty of the Court to hear and consider the matter referred to it; parties interested, whether Provincial Governments, associations, or individuals, are cited, and are represented by counsel, and the finding of the Court is practically a declaratory judgment, on which an appeal may be taken to the Queen in Council. The power may be compared both with the power of the House of Lords to consult the judges, and the power of the Crown under 3 & 4 Will. iv. c. 41 sec. 4 to refer to the Judicial


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Committee for hearing or consideration any such matters whatsoever as the Crown shall think fit. The power has been very freely exercised, and most of the important constitutional questions which have come from Canada to the Privy Council during recent years have been submitted under it.

The inconvenience of determining certain matters as abstract questions has been referred to,note but the Court is able to guard itself, and the power of reference seems to have been exercised with advantage. It may be noted that the proposal submitted to but rejected by the Australian Convention for prohibiting any challenge of a Statute as ultra vires save on behalf of the Commonwealth or a State, assumed that a substantive proceeding might be taken in the Court by the Attorney General of the one or the other for the determination of the validity of such a Statute. In Canada, as in other Colonies, the Judiciary is organised under the Parliament, which fully determines its functions. In the Commonwealth, as in the United States, it is judicial power which is vested in in the Courts, and it is clear that the advisory function is not included in that power, even when the Court may hear evidence and arguments to aid it in giving advice. By the Local Government Act, 1888, sec. 39, any question arising or about to arise as to whether any business, power, duty or liability passes to a County Council under the Act, may, without prejudice to any other mode of trying it, on the application of certain persons be submitted for decision to the High Court of Justice; and the Court after hearing such parties and taking such evidence (if any) as it thinks just, shall decide the question. In ex parte the County Council of Kent v. Council of Dover,note the Court of Appeal held that such an application was purely consultative and not judicial, that it “could only be decided in the sense of expressing the opinion of the Court how it ought to be decided,” when the question should arise


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in an actual determination of an existing dispute in which a private right was involved.

It has been pointed out that the organization of the judicial system of the Commonwealth must be such as to enable it to fulfil its functions. It must be able to assume cognizance of causes competently brought before it where the Constitution and the respective powers of the Commonwealth Government and the States are concerned. It must be protected against interference by the other parts of the Commonwealth Government. Before considering the organization of the judicial system, it is necessary to point to two other phases of the judicial power of the Commonwealth. Not merely is it a guardian and interpreter of the Constitution, which if not supreme is at all events superior to the like power in the States; but certain matters, by reason of the cause or the parties being deemed of especial concern to the Commonwealth as a whole, are assigned specifically to it; and finally it embraces, subject to limitations to be considered, the supreme appellate jurisdiction over all Courts within the Commonwealth.

The Judicial System.

Section 71.—The judicial power of the Commonwealth shall be vested in a Federal Supreme Court to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a a Chief Justice and so many other justices, not less than two, as the Parliament prescribes.

Thus the Constitution establishes and provides for the constitution of but one court. This Court cannot be abolished, nor can the jurisdiction, which it will be seen is assigned to it, be taken away except by an amendment of the Constitution. As to other federal courts, their establishment, their continuance, and their share of the judicial power of the Commonwealth are in the power


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of the Parliament. The power to invest the State Courts with federal jurisdiction is important and convenient; it avoids a multiplicity of tribunals, and the heavy cost of a large judicial establishment; and it is entirely justified by the high reputation for integrity and ability enjoyed by Australian Courts.

The extent of judicial power is nowhere expressly defined as it is in the Constitution of the United States. It consists of a general appellate jurisdiction (sec 73) and a jurisdiction over the matters specified in sections 75 and 76, which is partly vested in the High Court and for the rest to be defined by the Parliament under section 77.

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