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AUSTRALIA AND THE PRIVY COUNCIL.

[Contributed by THE HON. SIR JOSIAH H. SYMON, K.C.M.G., K.C.] ON January 1, 1922, the Commonwealth of Australia came of age. Twenty-one years-that is not a long time in the history of a Federal Union of Self-governing States, any more than in the life of a nation; but it has been long enough to test, both in peace and war, the constitution under which the Commonwealth was established. On the whole, it has not been found wanting. To say that it is not perfect is merely to say it is a written Constitution— the work of human minds and human hands. It is not immune from revision and amendment, any more than the Constitution of the United States, which Lord Rosebery, with fine rhetoric, described as "matchless," and which has been amended many times.

The social, political and industrial changes, particularly of the last ten years, have been immense, and it would have been little short of a miracle if the Constitution, framed under the conditions of more than twenty years ago, had responded to, and adequately met, all new conditions without amendment.

There is, however, one part of the Constitution which these changes do not affect that is the part which established the Federal Judiciary, except that the number of High Court Judges has been from time to time increased to keep pace with the increased volume of legal business.

The Commonwealth was a new State under the Crown created by the Union of the constituent States, which retained their autonomy, except to the extent of the powers expressly or impliedly transferred to the Federation. For the New Federal State a Federal Judiciary was necessary. The jurisdiction of the State Courts remained. Appeal to the Privy Council had always been incident to the State Judiciary.

It fell to my lot, as member of the National Federal Convention and Chairman of its Judiciary Committee, to frame the judiciary clauses of the Constitution, which the Committee unanimously

approved, and which were subsequently adopted by the Convention at its Adelaide and Sydney Sessions in 1897. These clauses, as originally framed and embodied in the draft-proposed Constitution, constituted the High Court the ultimate and final Australian Court of Appeal, wholly superseding appeal to the Privy Council—“Except that the Queen may, in any matter in which the public interests of the Commonwealth or of any State or of any other part of her Dominions are concerned, grant leave to appeal to the Queen in Council from the High Court" (s. 5 of Draft Constitution of 1897).

So they remained until the closing hours of the last session of the Convention in Melbourne, in April 1898, when the subject was reopened and the clauses modified so as to leave unimpaired and in full force the right of appeal from the State Supreme Courts direct to the Privy Council and to permit of appeals from the High Court by special leave except, as to both State and Federal Appeals, in matters involving the interpretation of the Federal Constitution or the Constitution of a State unless the public interests of some other part of the Dominions were involved. I do not overlook the reservation that the Federal Parliament might make laws limiting the matters in which leave to appeal might be asked. That, it was clearly understood, only applied to appeals from the High Court and did not affect appeals direct from State Courts, the late Sir Edmund Barton-then Mr. Barton, the Leader of the Convention-stating in the Convention, "We have no power to interfere with that.

One main reason for this eleventh-hour modification was the strong objection of the States and their citizens to give up their right of appeal to the Privy Council in ordinary litigation. That and other reasons prevailed.

So modified, the clauses stood in the proposed Constitution submitted twice by referendum to and approved and accepted by the people of Australia. It must therefore be taken that Australia then affirmed the retention of the Privy Council appeal, with the above restrictions only, though it may be doubted whether the people bothered their heads much about what probably seemed to them a purely technical matter, or whether the question affected a single vote. The vital momentous issue was Federal Union or no Federal Union-one Law Court, more or less concerned them little or nothing-all moreover being equally the Queen's, now the King's-Courts within the Empire.

With these modified judiciary clauses, ratified and accepted

by the people, the proposed Constitution was submitted to the Imperial Parliament for enactment. Clause 74 became a sort of storm centre-Mr. Chamberlain desired to widen the ambit of appeals. The Australian delegates, led by Sir Edmund Barton, urged with marked and strenuous ability the view expressed in Clause 74, as adopted by the Australian people. Eventually Mr. Chamberlain proposed a compromise which the delegates accepted, and which is Clause 74 in the Commonwealth Constitution, as it became law and now exists.

That compromise, or in other words, Clause 74, permits no appeal to the Privy Council from any decision of the High Court upon the interpretation of the Constitution-broadly upon any Constitutional question-but the High Court may certify that the question is one which ought to be determined by His Majesty in Council, and if for any special reason they so certify, then the appeal shall be to His Majesty in Council without further leave.

In other words, the cardinal principle is maintained that the High Court of Australia has exclusive jurisdiction to determine finally all constitutional questions, with power, if for sufficient reason it thinks fit, to call in aid the Privy Council, as it might be in a quasi-consultative capacity although in form and result an appeal. The right and competence of the High Court to determine finally all constitutional questions is recognized and preserved— neither Privy Council nor any human being or authority can interfere. Its power of final decision is absolute, none the less because of its discretion-apparently equally absolute-to take the opinion of the Privy Council or permit that opinion to be taken if the interests of justice and the Commonwealth require. Recently the High Court refused to certify in the case of the Amalgamated Society of Engineers v. The Adelaide Steamship Company, Limited, and others, (1920) 28 C.L.R. 129-a case of great constitutional importance and gravely affecting the control by a State of its own instrumentalities and incidentally of its own supplies. I shall refer again to this later on.

On this point it is to be remembered that the crucial argument of those, like myself, who then fought hard that the jurisdiction to decide all constitutional questions should reside in our Federal Supreme Court, was, that if Australia was fit to frame its own Constitution she was fit to interpret it. That principle is fully satisfied, and it is no derogation, but an advantage, that our own High Court, is entrusted—it would seem solely-with the wise and

salutary discretion to take so to speak, if it think fit, another opinion, as one leading counsel may desire the opinion of another leader of larger or wider experience than himself.

Except, then, as to constitutional questions the right of direct appeal from the State Courts was left untouched and Her Majesty's right by virtue of her Royal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council was not to be impaired.

The exercise of this prerogative right is committed to the Privy Council, who do not lightly grant special leave. Moreover, as to this the Commonwealth Parliament-the reservation of this power being retained-may limit the matters upon which such special leave may be asked-may limit them out of existence, except that proposed laws containing such limitation are to be reserved for His Majesty's assent. No one, however, can suppose that if the Commonwealth Parliament did choose to enact limitations, even to the extent of wiping out these appeals by special leave, His Majesty would be advised without the gravest reason to withhold assent.

If, therefore, we do not want to go beyond our own territorial Courts and avail ourselves by way of consultation or otherwise of the learning and aloofness of another Imperial Court, we need not do so.

With the settlement of this question, under what I have called the Chamberlain Compromise, the Delegates, trusted by the people, were content; all the members, I believe, of the Judiciary Committee, including myself, were content; the people of Australia were and are in my opinion content; the legal profession in Australia were and are content; and Clause 74 has worked well and given satisfaction. Indeed it hardly differs in substance, though it does in form, from the appeal provisions of the Draft Constitution adopted by the Referendum.

Then, let us consider the rights of the component States. Each State, as we have said, retains its own judicial system and its control with the right of direct appeal from judgments of the State Supreme Courts to the Privy Council, which it did not surrender on Federation except so far, of course, as any such judgment raised or involved constitutional questions. A defeated litigant in a State Supreme Court may, but need not, go to the High Court with his appeal. If he does then he can go no further without special leave from the Privy Council. If, however, he does not go to the High Court he can go to the Privy Council direct as of right.

I have never heard it suggested that the States are disposed to give up this right of appeal to the Privy Council, or that they would look upon any attempt by the Commonwealth to force them to do so as other than a breach of faith-if not tyranny.

There is a good deal of jealousy between the States and the Commonwealth. The States rather incline to think the powers of the Commonwealth should be, if not lessened, at least not enlarged. I do not know that the suspicion-unreasoning it may be in the States that the High Court might lean to the Commonwealth in constitutional or other questions between the State and Commonwealth has been altogether dissipated. Certainly this is not a time when any observant person would think it likely the States could be successfully asked to give up their right of appeal to the Privy Council and be content with the exclusive appellate jurisdiction of the High Court.

In Canada the position is different. The British North America Act was not the work of a representative Canadian Convention. It was framed and drafted in London. It was never submitted for approval or ratification to the people of Canada. Under it the whole judicature-federal and provincial-is one Dominion system. The provincial judges, with I think one or two immaterial exceptions, are appointed and paid by the Dominion. Many able and eminent Federalists in Australia contended that, without impairing the Federal principle, the establishment of the High Court might have been indefinitely postponed and its expense saved and appeal to the Privy Council left unrestricted-making the Privy Council in effect the Federal High Court-that would have seemed a confession of incompetence, but it would not have been in conflict or indeed inconsistent with a federal system within the Empire. Federated Canada had existed some eight years under the British North America Act before the Dominion Supreme Court was established.

Personally, like most-I think I may say all-of my colleagues of the Judiciary Committee, I was, in those evolutionary days, opposed to any appeal being permitted to the Privy Council from either State or Federal Courts. The argument that, if Australia was fit to enact her own laws she was fit to interpret them, seemed to us convincing and it was the basis of our advocacy in the Convention and before the people. This is now without force because, as I have shown, we have the power and exclusive control of interpretation. We reinforced that argument by raising aloft the banner