not avail ourselves, so far as we may without loss of dignity, of all or any of the Imperial instrumentalities?

The Imperial Navy is one of them-just as the Privy Council is. Are we to discard that as an "external navy"? Senator Lynch, in the Commonwealth Senate last year, according to a press cable, said, "We could not hold Australia for five minutes without the British Navy as our shield and buckler." That is true. Who is going to quarrel with that anomaly? Before Federation the same arguments might have been used to make the Supreme Court of the States final. South Australia did erect what was called a "Local Court of Appeals," but it was a ghastly failure.

(5) It is to be regretted the Privy Council appeal should be argued about as "a link of Empire." The expression is misleading. It is not a link. It is, I agree, a symbol of the unity of the Empire and that Australia is part of it. If so, how can there be humiliation in availing ourselves of an appellate Court of the Empire? There is no degradation in doing so. There is nothing derogatory to our autonomous dignity-nationhood, if you like.

In the words of the Australian delegates in 1900, "No patriotism was ever inspired by any thought of the Privy Council." Nor, on the other hand, is it any badge or mark of servitude or inferiority. It does not lessen by the estimation of a hair our dignity and complete self-government.

The continuance of this appeal does not keep the Empire together, nor would its abolition dissolve it. It is not a bond at all-much less one that chafes.

(6) The phrase "judicial equality" requires definition. The Commonwealth has its own judiciary-each State has its own. We administer justice to our own citizens. True, there is another Court of the same Empire to which limited and restricted appeals may go, but to that extent this other Court is part of our own system. It may be objected that is one more river to cross for the litigant-but it is our own doing. Australia decided how justice should be administered to her own people.

(7) Injustice is, I think, done to the Australian Labour Party in attributing to them the desire " to enable them to exercise a firmer control over the absentee capitalist," as " one of the principal motives" for adding to their platform the clause "The Australian High Court to be the final Court of Appeal." One hardly likes to speculate as to all that "desire" might be held to imply as to the impartial administration of justice. Nor is the unpleasant imputation warranted-at least as to Australia-that "there is possibly some little ground for the suspicion sometimes expressed in Australia and Canada that the right of appeal to the Privy Council may work unduly in favour of what The Sydney Bulletin used to call 'John Bull Cohen '-that is to say, the English moneyed interest." I have never heard any such "suspicion" expressed in Australia. If it existed, it would be unfounded.

Last October the Australian Labour Party, in conference in Brisbane, redrafted their platform and included a clause that the High Court should have final jurisdiction in all Australian causes ; but they also included clauses that the Senate should be abolished, that unlimited legislative power be given to the Commonwealth Parliament, and others which pointed to the substitution of unification -if not separation and independence for Federation. From the extreme Labour point of view the motive for finality of the High Court is, in my opinion, not to improve the administration of justice so much as to obliterate what they think is a mark, if not a so-called link," of Empire.

Recently at a meeting called to support the late Mr. Ryan, M.H.R.-who was looked upon as a de facto leader of the Federal Labour Party-in an appeal from a decision against him in a libel action against The Hobart Mercury, one of the speakers spoke of the Privy Council as "the highest tribunal in the world." I do not cite that as an individual opinion in itself of weight, but because I believe it expressed the feeling of Australia at large-and is a curious commentary on the Labour Party programme from their own ranks.

(8) It is not an opinion "generally held in Australia" that the Privy Council "has not proved a satisfactory tribunal in relation to its decisions on the Commonwealth Constitution." There is a considerable body of opinion that the High Court itself has not been always satisfactory in its constitutional judgments. The latest example is the case already quoted of The Amalgamated Society of Engineers v. Adelaide Steamship Co. But there is no infallibility in Courts. They may be right, and their critics, or even public opinion, wrong. It is quite true that representative judges from the Dominions and India were appointed to the Privy Council a good many years ago about 1894. The appointments were rather by way of compliment and added little or nothing to the strength of the tribunal, at any rate as regards the judge appointed for Australia, who was only once in England-in 1897-when he

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sat but was never in England or sat again. The Privy Council is a very different tribunal from what it was a good many years ago. It is at present a great judicial body-equal to the House of Lords -with one defect which should be remedied, namely: that only one judgment is delivered and the individual judges concurring or dissenting do not give their reasons as is the valuable and salutary practice in the House of Lords and all other Courts.

But the quality of the Court of Appeal is not the question now being considered. If incompetent or inefficient no one doubts it should be reformed or abolished. It is enough, however, to quote from Mr. Swift MacNeill, who in a letter to The Times last July, speaking of a reference to the Privy Council by His Majesty under the Act of 1833, said that "the decision of the Privy Council is of enormous moral authority," even although it might not be technically binding. Coming from Mr. Swift MacNeill, that is high praise.

(9) The desirability of one Imperial Court of Final Appeal taking the place of both House of Lords and Privy Council and including in its personnel judges from the Dominions, is an important question, but need not be discussed now, for such a Court would in principle be open to the same objections we are now concerned

with.

(10) The suggestion of an ambulatory Privy Council peregrinating the Dominions periodically seems rather Gilbertian than satisfactory-not on the ground that it would be " an interference with the autonomy of the Dominions in judicial matters as a bond which chafed rather than a band which attached," but because the people of the Dominions, notably the Australians, have a keen sense of humour, and such a proposal would, I feel sure, be regarded as an unpractical pleasantry.

(II) The feeling in Australia on this question is not represented by the clause in the Labour programme.

Neither the people generally nor any influential, or even noticeable-section of them have given any hint, nor is there any evidence, that they wish the abolition, or further restriction of this appeal or to reverse their verdict of approval at the Referendum of 1898.

This question closely touches the commercial and trading classes. I am unaware of any wish or movement amongst them adverse to the present appeal-nor have the Chambers of Commerce, which exist in every capital city, or other organizations for protecting trade declared their disapproval or taken any step towards puttin an end to it.

It is also significant that no attempt has been made during the past twenty years in Parliament to exercise the reserved right o limiting the matters in which special leave to appeal may be asked One would have expected at least some move in that direction i the "feeling against appeals is now stronger than ever."

The preponderant feeling and opinion of the legal profession are so far as I can ascertain, distinctly against interference with the present system in Australia.

(12) It has also been said that there is a wide-spread feeling amongst the working classes of the Dominions that the complications and expense of the modern judicial system tell heavily in favour of the rich litigant as against the poor. This may or may not be so, but when it is said this "feeling" applies especially to the right of appeal to the Privy Council, I can only say I am not aware of it as regards Australia. The working classes are not the litigious classes-apart from the industrial tribunals. To them the Privy Council is at most a mere name-to the vast majority not even that. They do not care one straw whether there is an appeal to the Privy Council or not. Like Gallio of old, they care for none of these things.

The local and small debt Courts are the Tribunals with which they are acquainted. Appeals to the State Supreme Courts or the High Court do not interest them-much less the Privy Council.

(13) It is also said that the Privy Council is under the disadvantage of lack of local knowledge. Many think that is in most cases an advantage-that too great or intimate local knowledge, whether of persons or things-apart from the evidence-is not favourable to acceptable or unbiassed judgments, and that a Court which sits, so to speak, in Olympus-removed from the local influence not seldom associated with local knowledge-might be the more ideal tribunal. We are as yet, not geographically, but measured by population, a small people, and, not literally, but in a degree everybody-judges included-knows everybody else. If you regard localities and not persons, what local knowledge has the High Court of the Northern Territory or other parts, near or remote, of this vast island continent? It is well too that judges should be aloof from all that may disturb by a hairbreadth the even equipoise of the scales of justice. I do not believe either the presence of local knowledge in the case of Australian judges or its absence in the

case of the Privy Council affects the administration of justice in the least.

(14) A constitutional convention is likely to be convened before long-indeed a Bill was introduced just before Christmas-to consider the subject of amending the Constitution. I know of no responsible statesman or public man who suggests inclusion of the question of abolishing the present system of appeals to the Privy Council in the agenda.

(15) The States would, in my opinion, warmly resist being deprived of the direct appeal which now lies from the State Supreme Courts to the Privy Council. They value that right. It is frequently availed of. The dignity of the States would be affronted if it were taken from them.

(16) Expense is not a matter of principle. It would be unusual to make one Court final because it is cheap and exclude another because it is dearer. The argument of expense on the point of controversy seems self-destructive. Greater cost should be of itself a restriction on appeals. Even rich suitors think twice before incurring heavy costs, which therefore tend to discourage unimportant appeals. Cheapness, on the other hand, is inimical to the principle, Interest reipublicæ ut sit finis litium.

Further, appeals are restricted as to amount. Security is required and the Privy Council, before entertaining an appeal, have regard to the importance of the question involved. The argument from expense, if driven to its logical conclusion, would wipe out all appeals and make the Court of first instance final. It applies to litigation generally and every Court. Going to law, many people think an expensive luxury which only the well-to-do can afford. The heavy cost is no doubt a fruitful and just cause of complaint. Cheapen it by all means. The remedy on this head is clearly to reduce the expense, not to do away with the Court.

(17) The High Court in The Federated Amalgamated Railway Service Association v. New South Wales Traffic Employees, (1906) 4 C.L.R. 488, decided that the Commonwealth could not interfere with State Instrumentalities. The Commonwealth Government thought this wrong. Twice—in 1911 and 1913-they prevailed upon Parliament to pass Bills to amend the Constitution so as to give the power which the High Court decided they had not got; but the electors on each occasion, on referendum, rejected these proposals and refused the amendment. Then, with a changed judicial personnel, the question again arose in 1920 in the case