A-G (Cth) v T & G Mutual Life Society Ltd

It is quite clear, and is not contested, that the petition by which T. & G. seeks special leave to appeal to Her Majesty in Council is incompetent if s. 3 of the Act of 1975 is valid. The section provides as follows:

Special leave of appeal to Her Majesty in Council from a decision of the High Court shall not be asked in a matter in which such special leave of appeal could, but for this Act, have been asked in accordance with section 3 of the Privy Council (Limitation of Appeals) Act 1968-1973 unless the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of this Act. The provisions of s. 3 of the Privy Council (Limitation of Appeals) Act 1968-1973 ("the Act of 1968") are as follows:

(1) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and

(b) did not involve the application or interpretation of -

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act.

It is apparent that the combined effect of the two Acts is to render incompetent any application for special leave to appeal from a decision of this Court unless the decision was given in a proceeding that was commenced before the date of commencement of the Act of 1975. That Act was reserved for Her Majesty's pleasure and was assented to on 30th April 1975. The Queen's assent was made known to each House of the Parliament by message dated 14th May 1975. The Act was proclaimed to commence on 8th July 1975. The proceeding in which the decision of this Court was given in the present case was commenced in the Supreme Court on 26th May 1976 and is not within the exception created by s. 3 of the Act of 1975. However the petition of T. & G. has been presented on the footing that the Act of 1975 is invalid, and the declaration sought by the plaintiffs, notwithstanding its form, is in substance a declaration that the Act has a valid operation.

At the outset, counsel for T. & G. submitted that neither the Attorney-General of the Commonwealth nor the Commonwealth itself has standing to bring or maintain these proceedings and that in any event what the plaintiffs seek is in effect to prohibit Her Majesty in Council from hearing the petition lodged by T. & G. and that this Court should not entertain proceedings of that kind.

In support of the first of these submissions it was said that the Act of 1975 does not create any public right which an application made in disregard of its provisions would infringe, and that to make such an application would not amount to a public wrong, because the Act does no more than affect the private rights of litigants, rather in the same way as a statute of limitations would do. In these circumstances, it was said, neither the Attorney-General nor the Commonwealth can sue to declare or enforce rights which are simply the private rights of private litigants. This argument cannot succeed. In the first place, it is not correct to say that the Act of 1975 affects only private rights. When the Constitution was framed, the question whether appeals might be brought from decisions of this Court to the Judicial Committee of the Privy Council, and if so in what cases, was regarded as one of high constitutional importance. The provisions of s. 74 of the Constitution, by reference to which that question must be answered, grant to the Parliament a power to enact legislation which will at once curtail the royal prerogative to grant special leave to appeal and render this Court - "the highest judicial organ created by the Australian people": Dennis Hotels Pty. Ltd. v. Victoria [24] , citing Isaacs J. in Pirrie v. McFarlane [1] - a court of final resort. It is impossible to say that legislation enacted under such a power is intended only for the benefit of private individuals; on the contrary, such legislation is enacted in the interests of the community as a whole, and the Attorney-General has standing to take proceedings to protect those interests, in accordance with a line of authorities which includeAttorney-General (N.S.W.) v. Brewery Employés Union of N.S.W. [2] ; Anderson v. The Commonwealth [3] and Tasmania v. Victoria [4] .

1. (1961) 104 C.L.R. 621, at p. 626. 2. (1925) 36 C.L.R. 170, at p. 196. 3. (1908) 6 C.L.R. 469, at pp. 499-500, 552-553. 4. (1932) 47 C.L.R. 50, at p. 52. 5. (1935) 52 C.L.R. 157, at pp. 171, 186-188.

It goes without saying that this Court could not entertain proceedings to prohibit Her Majesty in Council from hearing an application for special leave to appeal, but the present proceedings are not of that character. This action is not brought against Her Majesty, but against T. & G. and Whittle, and our decision will bind those parties, but will not bind the Judicial Committee. There is no reason why we should exercise our discretion against deciding the question now raised. It is the special duty of this Court to decide questions as to the constitutional limits of the powers of the Parliament, and the validity of laws enacted under s. 74 of the Constitution form no exception.

It was assumed by the whole Court in the recent case of Viro v. The Queen [5] that the Act of 1975 is valid. Indeed that assumption was the basis of the decision in that case. However the question was not argued, and we must now consider it.

Section 74 of the Constitution provides as follows:

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

On behalf of T. & G. it was argued that the last sentence of s. 74 confers on the Parliament a power to restrict the classes of matter in which special leave to appeal may be sought, but not to abolish completely the right to seek special leave. This argument was primarily based on the use of the words "limiting" and "limitation" in s. 74 and to that extent adopts the views expressed by Quick and Garran in their Annotated Constitution of the Australian Commonwealth, at p. 763:

The power to "limit the matters" is indeed given in the widest terms; but at the same time the power given is a power to limit, and not to abolish. To limit means "to apply a limit to, or set a limit for; to terminate, circumscribe, or restrict, by a limit or limits." (Webster's Internat. Dict.) A limit necessarily implies a content - an area within the limit. It is conceived that a law of the Federal Parliament, purporting to abolish the right of asking for leave in all matters whatever, would be outside the scope of the Constitution. On the other hand, the power to "limit the matters" in which leave might be asked could undoubtedly, if Parliament thought fit, be exercised to such an extent as to leave very little for the prerogative right to operate upon. In support of this argument, reliance was also placed on the introductory words of the third paragraph of the section which, it was said, indicate that it was not intended that the royal prerogative should be impaired except to the extent provided in the section, that is, by the operation of the first two paragraphs themselves, and by laws limiting the matters in which leave might be asked. Further it was argued that a law made under s. 74, to be valid, must limit the jurisdiction of the Judicial Committee by reference to a description of the matters in which special leave may be asked and that the Act of 1975 does not define the matters in which special leave may be asked by reference to anything pertaining to the character of the matters as such, but instead takes as its criterion an accidental circumstance, namely the date on which the proceedings were commenced.

Similar arguments were considered by the Judicial Committee in Kitano v. The Commonwealth [6] where it was held that the Act of 1968 was validly enacted. It was there unnecessary to decide whether the words "limiting" and "limitation" in s. 74 extended to authorize complete abolition of the right to seek special leave to appeal from this Court, since the Act of 1968 left some appeals from this Court untouched, and their Lordships held that the Act was therefore a "limitation" in the narrowest sense of the word [7] . A further argument advanced on behalf of the applicant in that case was that any limitation must be by subject matter, which must be specified in the limiting enactment and which must be one of the matters mentioned in ss. 75 and 76 of the Constitution. As to this argument their Lordships said [8] :

In their Lordships' opinion, however, the word "matters" which also appears in sections 75 and 76 (relating to the original jurisdiction of the High Court) is not to be so read. However necessary it may be, in view of the terms of section 75 and 76, to limit the application of "matters" in those sections, their Lordships have no doubt that in section 74 a general construction must be applied to the word In their Lordships' view the word as used in the Act of 1968 is within the general meaning which must be given to it in section 74 of the Constitution. It was conceded in the present case that in the light of this decision matters in s. 74 could not be confined to the matters mentioned in ss. 75 and 76, but it was said that it is to be read as referring only to the matters mentioned in ss. 73, 75 and 76, and that in any case the limitation must be by reference to the matters as such. 1. (1975) 132 C.L.R. 231; [1976] A.C. 99. 2. (1975) 132 C.L.R., at pp. 233-234; [1976] A.C., at p. 103. 3. (1975) 132 C.L.R., at p. 234; [1976] A.C., at p. 103.

It would not be right to say that the Act of 1975 is, like the Act of 1968, a limitation in the narrowest sense of the word, for the class of appeals which is left untouched is one which must dwindle and vanish altogether in the course of time. The Act of 1975 should be regarded as one which abolishes appeals to the Judicial Committee from any decision of this Court, except a decision upon a question as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States. It is on that basis that its validity must be considered.

At first sight it might appear, as Quick and Garran suggest, that the use of the word "limiting" implies that some matters must be left within the limit. However in the context of s. 74 it appears that it was intended that the Parliament should have the power to limit away altogether the matters in which leave might be sought. It will be observed that the Parliament was not given the power, under the third paragraph of s. 74, to abrogate entirely the prerogative right of Her Majesty to entertain appeals from the Court, since the first two paragraphs of the section preserve appeals in inter se matters which may be brought without further leave if this Court gives its certificate. Also it must have been contemplated that the Parliament might not wish to do away at once with the right to seek special leave in all other cases; it would have been natural for the Parliament to move progressively towards the ultimate goal that judgments of this Court should be final, as it in fact has done. In these circumstances the use of the words "limiting" and "limitation" is not inappropriate to confer a power from time to time to limit the matters in which leave may be brought until no such matters remain. If the section is construed as requiring that some matters, however few and rare, must remain in which special leave may be sought, the result will be absurd and, from a constitutional point of view, valueless. On that construction the Parliament might validly limit the matters in which leave might be sought to matters which in practice would never be likely to arise - for example, to matters arising under a particular treaty which by its nature could hardly occasion litigation, or to matters affecting representatives of a small and remote country with which Australia has no diplomatic relations, or to matters respecting property of such enormous value that even in times of inflation one would be likely to be found to meet the test. The result of the construction suggested by Quick and Garran, and by T. & G. in the present case, would be that for all practical purposes the Parliament would be able to abolish appeals to Her Majesty in Council from this Court (except of course in inter se cases) although it could not do so in form. A construction which would make the validity of a law depend upon the ingenuity of the legislature in this way would serve no constitutional purpose and cannot have been intended by the framers of the Constitution. On the contrary, the only check which was intended to be placed on laws limiting the matters in which special leave might be sought was that provided by the necessity to reserve proposed laws of that kind for Her Majesty's pleasure.

The opening words of the third paragraph of s. 74, in which "impair" is used, do not assist in the construction of the section; they preserve the prerogative right, insofar as it is not otherwise affected, but throw no light on the extent to which it may be affected.

It of course follows from this conclusion that it is unnecessary that a limitation must be effected by reference to matters described as such. In any case it would be contrary to the principles upon which the Constitution is interpreted and applied to make the validity of a statute depend simply upon the manner of its expression rather than upon its meaning and effect.

For these reasons we hold the Act of 1975 to be valid. It follows that T. & G. has no right to seek special leave to appeal to the Judicial Committee, and that a declaration should be made accordingly. In the circumstances of the case it seems unnecessary and inappropriate to grant an injunction.

The Court will make the declaration sought in the statement of claim.

The critical question in this case is the extent of Parliament's power under s. 74 of the Constitution to make laws "limiting the matters" in which special leave of appeal from this Court to Her Majesty in Council may be sought. Can Parliament validly make a law such as that which it enacted in 1975, a law which, with the passing of time, will quickly ensure (if it has not already done so) that never again may any decision of this Court be the subject of an application for special leave of appeal to their Lordships?

The Privy Council (Appeals from the High Court) Act 1975 is just such a law. Its effect must be, in due course, altogether to extinguish the right to seek such special leave of appeal.

In my view that Act is valid. Parliament does have this power and its valid exercise does not require either that the legislation should be no more than piecemeal in character or that it should be only partial in effect. The power to limit is not restricted to merely partial prohibition but comprehends the complete elimination of all opportunity to apply for special leave.

Accordingly in my view the validity of the Act of 1975 depends neither upon the continued existence of some right, however vestigial, to appeal in inter se matters pursuant to a certificate of this Court nor upon the preservation of the right to apply for special leave in the case of proceedings which were commenced before the Act's commencement date. To rely upon either of these two grounds is to acknowledge that valid exercise of the power to "make laws limiting the matters" in which leave may be sought requires that such laws should always leave untouched some residue of matters in respect of which leave may still be sought. To acknowledge this is, in my view, unjustifiably to restrict the legislative power conferred by s. 74. Even were this restricted view of the extent of the power to be adopted, I would not regard the instance of inter se questions as providing any such residue as that restricted view would call for as a condition of validity: what may be limited under s. 74 are matters in which such "leave may be asked" but in the case of inter se questions no question of special leave arises, instead a certificate of this Court is the prerequisite and if it be obtained the appeal lies "without further leave". However this is somewhat to digress from my principal proposition, which is that no such restricted view should be taken of the legislative power conferred by s. 74.

The true extent of the legislative power conferred by s. 74 emerges from a consideration of the effect of ss. 73 and 74 upon what has been described as "the inherent prerogative right, and, on all proper occasions, the duty, of the Queen in Council to exercise an appellate jurisdiction " Reg. v. Bertrand [9] . The exercise of this prerogative has been much regulated by statutes and by Orders in Council in the past 150 years but the Commonwealth of Australia Constitution Act marked the first occasion upon which in the case of any court in the Empire overseas there was a statutory denial of all access to the Queen in Council from certain of its judgments, effected by Imperial Act.

The Constitution affected the prerogative right of the Queen in Council in relation to appeals from the High Court in three ways. The reference, in s. 73, to judgments of the High Court in its appellate jurisdiction being "final and conclusive" ensured that no appeal by what is commonly called right of grant would lie to Her Majesty in Council - Quick and Garran Annotated Constitution of the Australian Commonwealth, pp. 746-747. Thus, in The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [10] Starke J. relied upon the words "final and conclusive" for the proposition that "His Majesty may, as an act of grace and subject to the provisions of sec. 74 of the Constitution, grant special leave to appeal from the High Court to His Majesty in Council; but there is no appeal as of right".

By s. 74 access to the Judicial Committee was further affected. As a result of its first two paragraphs inter se questions might only go on appeal upon the certificate of this Court. By its third paragraph the only avenue of access to the Judicial Committee remaining after the exclusion of appeals by right of grant, namely that by way of special leave of their Lordships, was subjected to the legislative power of the Commonwealth Parliament, this being done by the words: "The Parliament may make laws limiting the matters in which such leave may be asked." That these words mean precisely what they say, permitting a Parliament other than the Imperial Parliament to restrict invocation of the prerogative right of the Queen in Council to exercise appellate jurisdiction, is confirmed, if confirmation be needed, by the opening words of the phrase immediately preceding it: "Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council." There was, then, to be an impairing of the right to grant special leave but only by the terms of s. 74, which provided for that impairing to be effected partly by its own provisions relating to inter se questions and partly by empowering the Commonwealth Parliament to enact legislation limiting the seeking of leave. The reference in s. 73 to judgments of the High Court being "final and conclusive" was not of itself to have any effect upon the prerogative appeal by special leave.

What is particularly notable about the grant of power to the Commonwealth Parliament to limit the seeking of special leave is that it is at one and the same time entirely unfettered in its scope yet made subject to a uniquely stringent mode of control. The power is neither confined by reference to subject matter nor qualified by condition. However any exercise of the legislative power is expressed to be subject to mandatory reservation for Her Majesty's pleasure: the grant of legislative power is followed by the words "but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure".

Several consequences flow from the wide ambit but closely controlled exercise of this legislative power. First, because of that wide ambit and the consequential absence of any indication which might serve to give content to the term "limiting", the meaning which the first-named defendant attributes to "limiting", that it must involve the leaving of some residue of matters unaffected, gives to the provision as a whole an operation which is as unpredictable as it is irrational. Unpredictable because so long as some residual matters, regardless of subject, are left untouched by legislation enacted under s. 74 that is said to suffice to ensure validity: irrational because it can serve no purpose to require some residual matters to be left unaffected so long as their identity and scope are completely undefined in advance. Only the clearest of language can compel the adoption of such an interpretation as representing the meaning of this provision of the Constitution.

The improbability of this in fact being the true meaning of the word "limiting" is the greater when the nature of the close control imposed upon the exercise of this power is considered. In 1900 control by automatic reservation was entirely effective. It ensured that any legislative measure limiting recourse to Her Majesty in Council would only become law if Her Majesty, acting upon the advice of her Imperial advisers, assented to it. Given such an effective measure of control, any additional restriction involved in the notion that exercise of the legislative power must none the less always be confined by a need to leave a residue of matters not subject to legislative limitation seems a distinctly improbable constitutional intent.

Again, the uniqueness of this mode of controlling the exercise of this power is significant. Nowhere else in the Constitution is there any provision for mandatory reservation of legislation. To all other cases the provisions of s. 58 apply and the Governor-General is given a discretion whether to assent, to withhold assent or to reserve for Her Majesty's pleasure. That in the case of s. 74 this potent means was adopted of ensuring that the Crown's prerogative of hearing appeals pursuant to special leave was not restricted in any manner inconsistent with the wishes of the Imperial government, makes more curious still the interpretation which the firstnamed defendant would place upon this closely controlled power.

I have referred to the effect, in 1900, of this provision for mandatory reservation. Quick and Garran speak of it in these terms (op. cit.), p. 764:

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. As Moore's Commonwealth of Australia, 2nd ed. (1910) makes clear at p. 110, the Governor-General was himself at that time regarded "as an officer of the Imperial Government" so that upon any legislative measure for which the Royal assent is sought "if the matter is of more than local importance, he may seek the advice of the Imperial Law Officers". This still very much reflected what Alpheus Todd said when, writing in 1880 in his Parliamentary Government in the British Colonies, he spoke of a colonial governor's role, in relation to questions of an imperial nature, as that of "an imperial officer, without limitation or restraint". That the role of the Governor-General and, for that matter, of Her Majesty, in relation to the granting of consent to or the reservation of bills, has long since changed, in no way detracts from the significance of the inclusion in s. 74 of this unique measure of Imperial control over such legislation as the Commonwealth Parliament may enact pursuant to s. 74.

These several considerations, all flowing from the wording and context of s. 74, suggest that no such restrictive interpretation as that for which the firstnamed defendant contends should be given to the legislative power conferred by s. 74. Reference to the legislative history of s. 74 confirms this view. In the recent case of Seamen's Union of Australia v. Utah Development Co. [11] I have sufficiently expressed my views concerning the propriety of making reference to such history.

As enacted, s. 74 is very different from the section as it emerged from the Constitutional Convention and was approved by referendum in Australia. However the changes made were largely confined to what are now its first two paragraphs, dealing with inter se questions. The only change made to what now forms its third paragraph was the addition of the provision for the mandatory reservations of bills for the Royal assent: the remainder of that paragraph, including the grant of legislative power to limit the matters in which special leave of the Privy Council might be sought, stood unaltered, and this despite the Imperial government's determination to preserve, so far as it might, the position of the Privy Council as the Empire's final court of appeal.

The reason is not far to seek. It lies in the then prevailing view that the self-governing colonies of the Empire were already competent to legislate for the abolition of appeals to the Privy Council: the safeguard of Imperial interests lay, it was thought, in a retention of the power to reserve such legislation and, if necessary, to withhold the Royal assent. Thus, once a provision for mandatory reservation was inserted, nothing in the third paragraph of s. 74 involved any novelty, it merely accorded to the new Commonwealth a power which, according to the then prevailing view, was thought to be already enjoyed by other self-governing colonies of the Empire. The present relevance of all this is that this particular view of the legislative power of self-governing colonies was that of a power extending to the complete abolition of appeals to the Privy Council; there was no notion that some residue of matters must be left untouched upon which the prerogative might still be operative. It would have been this latter notion, rather than the concept that such colonies possessed the power of abolition, which would at the time have been regarded as a novelty.

So it is that the legislative history of the third paragraph of s. 74, understood in the light of then prevailing views concerning the legislative powers of self-governing colonies, supports an interpretation of the legislative power which it confers extending to the complete elimination of all opportunity to apply for special leave, there being then no question of having to leave untouched some unspecified residue of matters in which such leave might continue to be sought.

What I have spoken of, the events of 1900 and the then current views as to the legislative competency of self-governing colonies, may be established without recourse to those materials, however readily at hand, which have been regarded as not proper to be availed of by those engaged in the task of constitutional interpretation although no doubt furnishing to historians the most reliable of source material. The form of the Constitution as originally presented to the Imperial government for enactment may on any view be studied and compared with its form as enacted. It is available from a number of sources, including the legislation of the various colonies which provided for its submission to the people at a referendum - for example, Act No. 1603 (Vict.). The then prevailing views as to the state of Imperial constitutional law may be found in the writings of contemporary authors and in the decisions of the Judicial Committee in the last century which provided the basis for the views of those authors.

These decisions principally concerned the North American and Indian colonies. They begin with Cuvillier v. Aylwin [12] . This case involved an objection to the competency of an appeal to their Lordships brought from decisions of the Court of Appeals for Lower Canada which involved less than the appealable amount for which an appeal as of right would lie. It was argued that even if the words of the relevant provincial legislature should be understood as altogether excluding appeals by special leave such a provision would be beyond power because of the special quality of this Crown prerogative to hear appeals. In a very short judgment the Master of the Rolls rejected this contention, saying that the King, acting with the other branches of the legislature, might deprive a subject in any of his dominions of his rights. That his Lordship had in mind colonial legislation is clear; the Imperial legislation of 1791, the Canada Act, 31 Geo. 3 c. 31, did no more than establish courts and empower the respective legislatures of Lower and Upper Canada to legislate by way of making further provision as to provincial courts and, inter alia, as to appeals therefrom. The legislature of Lower Canada, in 1793, was exercising that power when it legislated for a Court of Appeal whose judgments should be "final" where the judgment was for less than the appealable amount. It was of this provincial legislation and of the Royal assent to it of which his Lordship spoke.

This is borne out by Reg. v. Eduljee Byramjee [13] . Their Lordships there treated Cuvillier v. Aylwin as holding that "as the Act in Canada was made in pursuance of an Act of Parliament of Great Britain, the powers contained in that Act did take away the prerogative of the Crown" - and see, in the following year, Reg. v. Stephenson, per Lord Brougham [14] .

1. (1846) 3 Moo. Ind. App. 468, at p. 487 [ 18 E.R. 577, at p. 583]. 2. (1847) 3 Moo. Ind. App. 488, at pp. 491-494 [ 18 E.R. 586, at pp. 587-588].

In In re Louis Marois [15] their Lordships, who included Lord Chelmsford and Knight Bruce and Turner L.JJ., entertained doubts concerning the correctness of the interpretation which had been placed upon the provincial legislation in Cuvillier v. Aylwin. However they assumed, as did the applicant for special leave in that case, that it was competent for such provincial legislation to take away the right to apply for special leave, the question being only whether that legislation had in fact done so.

Théberge v. Laudry [16] was a case concerned with an application for special leave to appeal from the Superior Court of Quebec sitting in its special jurisdiction to hear election petitions. From its decision in that jurisdiction it was expressly provided that there should be no appeal. Their Lordships' rejection of the application turned upon the character of this special jurisdiction. However, they went on to enunciate the general principle that the taking way of the prerogatives of the Crown required express words and they clearly enough regarded provincial legislation as capable of supplying such words. Likewise in Johnston v. Minister and Trustees of St. Andrew's Church, Montreal [17] , again an application for special leave to appeal, their Lordships once more examined local legislation, this time that of the Canadian Parliament, to determine whether it had by appropriate language taken away the Royal prerogative to allow an appeal.

1. (1876) 2 App. Cas. 102. 2. (1877) 3 App. Cas. 159.

Then in Cushing v. Dupuy [18] their Lordships again had to consider Cuvillier v. Aylwin [19] . Sir Montague Smith, with whom sat Sir James Colville, Sir Barnes Peacock and Sir Robert Collier, delivered the judgment of their Lordships. Here a statute of the Canadian Parliament was in question and while considering it unnecessary to consider precisely what powers that Parliament possessed to affect the Royal prerogative, it was concluded that the statute did not in fact purport to derogate from the Royal prerogative.

1. (1880) 5 App. Cas. 409. 2. (1832) 2 Knapp 72 [ 12 E.R. 406].

It was upon the footing of these decisions that in Cameron, The Canadian Constitution and the Judicial Committee (1915) it was stated, at p. 29, that the provincial legislations of Ontario and Quebec "have power to limit appeals to His Majesty in Council, and where the right of appeal is taken away by such legislation there remains no power in the Judicial Committee to grant leave to appeal". It is, by the way, interesting to note that the author speaks there of a power to "limit" although what was in question was complete abolition. At p. 38 he again speaks of the competence to "limit" appeals when the complete barring of appeals was in question. In the latter passage he is dealing with a bill of the Canadian Parliament which provided that judgments of the Supreme Court of Canada should be final; to that legislation the Crown had on that ground refused its assent and the author concluded that the controversy resulting from that refusal "was based on the assumption that the original bill, if it had received the assent of the Crown, would have been vaild and effective to prevent the exercise of the royal prerogative". At p. 39 he attributes a like view to the Lord Chancellor as expressed in the course of the Colonial Conferences of 1907 and 1911.

In Lefroy, Legislative Power in Canada (1898), p. 184, after an examination of the cases, the learned author says:

Thus it would seem that in their Lordships' view a colonial Act assented to by the Crown through its authorized representative could interfere with and regulate the exercise of the prerogatives of the Crown as the fountain of justice, so far as the rights of those under its jurisdiction were concerned. Quick and Garran deal with the topic in similar vein at pp. 746-747.

In Safford and Wheeler, Privy Council Practice (1901), the following passage appears:

In any case where the prerogative has existed precise words must be shown to take away the prerogative. It is competent, however, for the Crown to part with its prerogative right to receive appeals, although of itself it cannot deprive the subject of any of his rights. This may be done by the Imperial Legislature, of which the Crown is part, delegating to a Colonial Legislature the duty of framing provisions on the subject of appeal, and thus limiting the Crown's prerogative. Again, when speaking of the Crown parting with its prerogative, it is of legislation "limiting" the Crown's prerogative that reference is made.

Mr. Bentwich in both his first (1912) and his second (1926) editions of Privy Council Practice observes, at pp. 36-37 and p. 33 respectively and consistently with this view, that

In any case where the prerogative has existed, precise words must be shown to take away the prerogative. It is competent, however, for the Crown to part with its prerogative right to receive appeals, although of itself it cannot deprive the subject of any of his rights. This may be done when the Imperial legislature, of which the Crown is part, itself limits the prerogative or delegates to a colonial legislature the duty of framing provisions on the subject of appeal, and thus limiting the Crown's prerogative.

If the prerogative is aptly and expressly limited in either of these ways, the Privy Council can no longer grant the subject special leave to appeal.

Again there occurs the use of the verb "limit" in a context where parting with the prerogative right is in question.

Reference may also be made to In re Will of Wi Matua dec'd [20] in which the reasoning appears to proceed upon the footing that had express words been present a New Zealand statute would have been effective to exclude any application for special leave to appeal - and see Moses v. Parker [21] and Canadian Pacific Railway Co. v. Toronto Corporation and Grand Trunk Railway Co. of Canada [22] .

1. [1908] A.C. 448. 2. [1896] A.C. 245, esp. at p. 248. 3. [1911] A.C. 461, at pp. 470-472.

Sir Berriedale Keith was, perhaps, the leading critic of this view of the power of colonial legislatures. He expressed his views in a number of works published in the first quarter of the present century, notably in Responsible Government in the Dominions (1912), vol. III, esp. pp. 1357 et seq. However as late as 1916 he wrote in his Imperial Unity and the Dominions, pp. 267-268:

The right of the Crown to grant special leave to appeal rests on the royal prerogative in the first instance, but the prerogative can be barred by local legislation in most cases, and it may be held that it could effectively be barred in the case of this prerogative also. There is, however, a certain difficulty in the matter which cannot be wholly ignored. going on to explain that difficulty as lying both in the extraterritorial operation of legislation which sought to bar this prerogative of the Crown and in the inconsistency which he discerned between any such local legislation and the acknowledgedly unintended effect of the Imperial Act of 7 & 8 Vict. c. 69, an effect which he describes, at p. 369, as "long overlooked."

It was not until 1926, in Nadan v. The King [23] that their Lordships in effect adopted these views of Sir Berriedale Keith and concluded [24] that "If the prerogative is to be excluded this must be accomplished by an Imperial statute". They referred to s. 74 of the Commonwealth Constitution as one instance of the product of Imperial legislative action and went on to distinguish a number of the earlier authorities [25] . Thereafter it was not until the Statute of Westminster 1931 removed these fetters upon legislative power - Attorney-General (Ontario) v. Attorney-General (Canada) [26] - that the Canadian Parliament was regarded as empowered to abolish appeals to the Privy Council. In British Coal Corporation v. The King [27] the effect of the Statute of Westminster was closely considered and was held to overcome the two obstacles which Sir Berriedale Keith had seen as standing in the way of that abolition.

1. [1926] A.C. 482. 2. [1926] A.C., at p. 493. 3. [1926] A.C., at pp. 493-494. 4. [1947] A.C. 127, esp. at pp. 148-149. 5. [1935] A.C. 500, at pp. 516-519.

It is not, of course, with the correctness of the views which I have described as prevailing during the nineteenth century as to the competency of colonial legislatures that I am presently concerned. Rather it is the light cast by those views upon the legislative history of s. 74 of the Constitution that is of interest. The existence of these views explains why the grant of legislative power in s. 74 passed unscathed into the Imperial legislation and at the same time suggests that the grant was of a power wholly to abrogate the right to apply for special leave.

The common use by the authors of texts of the verb "limit" when discussing the power of self-governing colonies may perhaps incidentally also provide some explanation of the use of "limit" in s. 74. "Limit" is an entirely appropriate verb to use when speaking of one aspect only of the Royal prerogative, even when invisaging the abrogation of that aspect, if other aspects of the prerogative are to be left intact. This usage may well have carried over into the wording of s. 74. Another and perhaps better expalantion lies in the scheme adopted by the draftsman in expressing the grant of power in s. 74. His approach was to refer not to the right to apply for special leave but rather to the matters in respect of which application might be made, so that if the legislature was to be empowered to deal with the matter progressively, rather than once and for all, the concept could, no doubt, only be expressed concisely by using the verb "limit". Whatever be the explanation, and the existence of a meaning of "limit", now said to be obsolete, as meaning "to prohibit", as in "to prohibit (a person) from (something)" (Oxford English Dictionary), cannot be altogether ignored as a possible explanation, I conclude, both because of the context and operation of s. 74 and because of its legislative history, viewed in the light of the contemporary understanding of the powers of colonial legislatures, that the third paragraph of s. 74 confers an ample power upon the Commonwealth Parliament to enact the Privy Council (Appeals from the High Court) Act 1975.

That Act, having been reserved for Her Majesty's pleasure, was duly assented to and was proclaimed to commence on 8th July 1975. The proceedings to which the present defendants were parties were not begun until May 1976 and it follows that the operation of s. 3 of the Act is to prevent T. & G. Mutual Life Society Ltd. from petitioning for special leave to appeal from the decision of this Court.

It was urged on behalf of T. & G. Mutual Life Society Ltd. that the plaintiffs had no standing to institute these proceedings and that in any event the relief sought should, in the exercise of discretion, be refused. The standing of the plaintiffs to have determined this very important constitutional question, a question which was a focus of attention in Australia throughout the years of the Constitutional Conventions and which has been equally a matter of great controversy at different times in the constitutional history of Canada, of South Africa and of Eire, is in my view not in doubt.

The Commonwealth and its Attorney-General have not, by this action for declaratory and injunctive relief, intervened in the proceedings between the two defendants because of any particular concern in the outcome of that private litigation. They have done so only because in the course of that litigation, one of those defendants has taken a course which necessarily assumes the invalidity of Commonwealth legislation of high constitutional importance. As Dixon J. observed in Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth (the Pharmaceutical Benefits Case) [28] there exist peculiar difficulties in the working out of the application to our federal system of a doctrine developed in the English unitary system. These difficulties are not confined to instances in which the interests of States come into conflict with that of the Commonwealth; they also include cases in which the existence of a written constitution and of a federal legislature having circumscribed powers gives rise to problems not yet encountered in Britain. To accord the present plaintiffs standing to sue and to exercise a discretion in favour of granting the declaratory relief to which I regard them as entitled is, I think, wholly consistent with, if not precisely foreshadowed by, the approach of this Court in earlier cases in which, in essentially federal disputes, Attorneys-General have been accorded standing. On the other hand, to deny standing despite the fact that since 1968 appeals from this Court upon matters involving the interpretation of the Constitution may no longer be the subject of applications for special leave - Privy Council (Limitation of Appeals) Act 1968, s. 3 - would be to call a halt in that evolutionary process to which Dixon J. called attention and would involve abdication by this Court of its special and now exclusive function of interpreting the Constitution.

No occasion arises for the grant of injunctive relief but the declaration sought in the statement of claim should be made.

The plaintiffs, the Attorney-General and the Commonwealth, claim a declaration that the provisions of the Privy Council (Appeals from the High Court) Act 1975 ("the 1975 Act") do not permit T. & G. Mutual Life Society Ltd. (the first defendant) to ask special leave to appeal to the Privy Council from the decision of this Court given on 22nd December 1977 on an appeal in which the first defendant was a respondent and the second defendant, T. C. Whittle Pty. Ltd., was appellant. The decision was on an appeal from a judgment of the Supreme Court of New South Wales, in a matter which commenced on 26th May 1976, that is after the 1975 Act came into operation on 8th July 1975.

The plaintiffs also seek an injunction to restrain the first defendant from proceeding further on the application for special leave which it has filed in the office of the Privy Council.

The first defendant contends that the 1975 Act is invalid, that the plaintiffs have no standing to claim the relief sought, and that the Court in its discretion should not grant the relief.

Standing. The challenge to the legal standing of the Commonwealth and the Attorney-General must fail. The plaintiffs claim relief designed to prevent an unlawful attempt to appeal from this Court in circumstances where no appeal lies. The Government of the Commonwealth and the Attorney-General have a legal interest, if not a duty, to institute proceedings to ensure that the Australian judicial system is not undermined or embarrassed by attempts to invoke authority of a court elsewhere which has no jurisdiction. The lodging of the petition to the Privy Council was an assertion that the 1975 Act was invalid, which is a question to be determined by this Court.

There was much force in the plaintiffs' contention that the question of validity of the 1975 Act is an inter se question, that is, a question as to the limits inter se of the constitutional (judicial) powers of the Commonwealth and the States. The plaintiffs' contention was that State judicial power is limited by the provision in s. 73 for appeal from State Supreme Courts to the "final and conclusive" judgment of the High Court; that subjection of State judicial power to the judicial power of the Commonwealth is qualified by the provision in s. 74 for appeal to the Privy Council; the limitation of that qualification therefore affects the limits inter se of the constitutional (judicial) powers of the Commonwealth and the States; and a question of the validity of such limitation is an inter se question. The effect of s. 74, the judicial decisions, and the historical developments is that an inter se question is not in any event for the Privy Council to determine. It is not necessary however to determine whether the validity of the 1975 Act raises an inter se question. It is clearly a question for this Court to determine.

The plaintiffs are endeavouring to vindicate the Constitution, the Act of Parliament and the authority of this Court. This is sufficient to give them standing. In this kind of case, the Attorney-General can and should act on behalf of the Commonwealth to ensure that the Constitution and Acts of Parliament are not flouted.

Validity of the 1975 Act. The 1975 Act is of course presumed to be valid, and in Viro v. The Queen [29] this Court proceeded on the view that it is valid. The challenge to the validity of the 1975 Act was based on the proposition that it is not a law which limits (within the meaning of that expression in s. 74 of the Constitution) the matters in which special leave may be asked and that its operation is to abolish all appeals, subject to a residual dispensation of no continuing significance.

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

Parliament very greatly limited the appeals to the Privy Council by the Privy Council (Limitation of Appeals) Act 1968-1973 ("the 1968 Act"), which provided:

(1) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction;

(b) did not involve the application or interpretation of -

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act.

4. Leave of appeal to Her Majesty in Council, whether special leave or otherwise, shall not be asked from a decision of a Federal Court (not being the High Court) or of the Supreme Court of a Territory.

The first defendant concedes that the 1968 Act is valid because it abolishes some, but not all, appeals.

3. Special leave of appeal to Her Majesty in Council from a decision of the High Court shall not be asked in a matter in which such special leave of appeal could, but for this Act, have been asked in accordance with s. 3 of the Privy Council (Limitation of Appeals) Act 1968-1973 unless the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of this Act.

The first defendant contends that the 1975 Act is invalid because it abolishes all appeals, apart from the residual cases, and does not particularize or describe the matters in which special leave may not be asked. This is not strictly the effect of the 1975 Act. Apart from the residual cases (which I will disregard), it abolishes appeals only in those cases in which "such special leave of appeal could, but for this Act, have been asked in accordance with s. 3" of the 1968 Act. However, when regard is had to the 1968 Act, s. 3 of the 1975 Act does describe the matters in which it prevents special leave being asked. They are matters in which the decision of the High Court is given on appeal from a decision of the Supreme Court of a State other than in the exercise of federal jurisdiction, and the decision of the High Court does not involve the application or interpretation of the Constitution or a law made by the Parliament or an instrument under such a law. That is, it deals only with the area untouched by the 1968 Act. Although the first defendant concedes the validity of the 1968 Act, logically its attack should have been on the legislative scheme which includes both the 1968 and the 1975 Acts and abolishes all appeals. I will treat the second defendant's argument on the basis that abolition is the effect of the 1975 Act.

The 1975 Act answers the description of a law limiting the matters in which special leave may be asked. The power "to make laws limiting the matters in which such leave may be asked" does not call for in-depth grammatical analysis. The plain intention is to authorize the Parliament to do what it has done. It could have abolished appeals entirely by one measure. To adopt the suggestion that s. 74 requires that (and is satisfied if) some category of appeal, however trivial or rare, is left, is to read an absurdity into the Constitution.

As the appeal is from a decision of this Court given after 8th July 1975 the result is that special leave may not be asked.

Discretion. The first defendant contended that in its discretion this Court should not grant the relief. As there is no jurisdiction under Australian law in the Privy Council to entertain the appeal and special leave to appeal may not be asked, it would be a wrong exercise of discretion to decline the relief sought, and allow the Parliament to be defied. If the plaintiffs had not come to this Court, and the matter had proceeded to decision in the Privy Council, that decision would be of no effect in Australian law (whatever effect it might have in the United Kingdom). The power of this Court would be available to ensure that full effect would be given to the decision of this Court of 22nd December 1977.

The plaintiffs are entitled to the declaratory and injunctive relief which they claimed, and I would grant both. However, the plaintiffs have indicated that they would be content with the declaration, and do not press for the injunction.

In this matter the principal issue is whether the Privy Council (Appeals from the High Court) Act 1975 is valid. By s. 3 it provides as follows:

Special leave of appeal to Her Majesty in Council from a decision of the High Court shall not be asked in a matter in which such special leave of appeal could, but for this Act, have been asked in accordance with section 3 of the Privy Council (Limitation of Appeals) Act 1968-1973 unless the decision of the High Court was given in a proceeding that was commenced in a court before the date of commencement of this Act.

The Privy Council (Limitation of Appeals) Act 1968-1973 (the validity of which was upheld in Kitano v. The Commonwealth [30] had by s. 3 provided as follows:

(1) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and

(b) did not involve the application or interpretation of -

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act.

The two Acts together thus cover all cases which come before the High Court and preclude the making of applications for special leave to appeal from the High Court to the Privy Council. This question of validity depends upon the proper construction of s. 74 of the Constitution, the third paragraph of which is as follows: Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's Pleasure. 1. (1975) 132 C.L.R. 231; [1976] A.C. 99.

In considering the proper construction and operation of s. 74 of the Constitution it is in my opinion necessary to bear in mind its history, not only in the various drafts of the Constitution as prepared by the Conventions in the 1890's but also as it was amended in the final discussions which took place in London in the first half of 1900. It is firmly settled that resort may not be had to the debates at the Conventions where the Constitution was discussed and formulated. With respect this exception seems to me entirely proper and indeed necessary; there is it seems to me even less reason for regarding views there expressed as a legitimate consideration than there is for regarding "official" statements by Ministers in either House of the Parliament, or other statements in debates there, as an aid to construction. It does not however follow from that proposition that we must close our eyes to historical facts as providing a background against which to view the Constitution. This Court has, I think, made it plain that this is so. Thus in Tasmania v. The Commonwealth [31] Griffith C.J. said:

We think that as matter of history of legislation the draft bills which were prepared under the authority of the Parliaments of the several States may be referred to. That will cover the draft bills of 1891, 1897 and 1898. But the expressions of opinion of members of the Conventions should not be referred to. O'Connor J. said [32] : In all cases in order to discover the intention you may have recourse to contemporaneous circumstances - to the history of the law, and you may gather from the instrument itself the object of the legislature in passing it. In considering the history of the law, you may look into previous legislation, you must have regard to the historical facts surrounding the bringing [of] the law into existence. 1. (1904) 1 C.L.R. 329, at p. 333. 2. (1904) 1 C.L.R., at p. 359.

In Deakin v. Webb [33] Griffith C.J. when dealing with an application for a certificate under the first paragraph of s. 74, said:

We know historically that the responsibility was only cast upon us after long consideration and negotiation. Various proposals were made, and the establishment of the Commonwealth very nearly fell through in consequence of the differences of opinion upon the point. Barton J. said [34] : But there has been much argument concerning the use of the words "any special reason," in section 74; no other section of the Constitution helps us in construing them. Therefore it is not unreasonable that I should say something about the circumstances under which this section originated. As stated at the bar, it originally appeared in the form adopted at the referendum, namely: - "No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution, or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions other than the Commonwealth or State are involved."

A delegation, consisting of men who had taken a prominent part in the movement for federation, was authorized to proceed to England, with a view to assisting the passage, without amendment, of the Constitution endorsed by the people. After their arrival in England, a lengthy controversy arose, practically confined to the terms of clause 74. Those who have read the State papers of the time, which are common knowledge on the subject, will know that the objection entertained by Her Majesty's Government to the clause as framed, was largely in respect to the use of the words "public interests". It was from the first conceded, on the one hand, that those who had made this Constitution, were entitled to have it, if possible, adopted with the assistance of Her Majesty's Government, and of the Imperial Parliament, in so far as there was nothing in it which constituted a danger, or might provoke a difficulty with respect to general Imperial interests. On the other hand, it was rightly asserted that the Imperial Government and Parliament stood in the position of trustees of the Empire, and granting the fullest autonomy and self-government to the various colonies in respect of matters purely local, were, nevertheless, charged with the responsibility of seeing that matters which concerned grave public interests outside should form a special charge of the Imperial authorities. That position was asserted by Her Majesty's advisers, and was equally conceded by the delegates. The controversy, then, as to the term "public interests" largely consisted of this, that the legal advisers of the Imperial Government thought the term was too vague to define the class of cases in which there should not be finality in the determinations of the High Court. After very much discussion and negotiation, and the framing of alternative propositions, the terms of the present clause were agreed on, and were subsequently passed as part of the Constitution in substitution for the original clause. It will be evident to anyone who considers what the main controversy was about, that is to say, whether the clause as originally drawn sufficiently protected other parts of the Empire, that the intention was to substitute a provision embodying a due regard to those principles which had been asserted on each side, and conceded in turn by the contending representatives or governments.

He then went on to consider the nature of "special reasons" as referred to in s. 74. O'Connor J. [35] however thought it was permissible to have resort to the history of the clause or the circumstances surrounding the framing of the Constitution only if it were not possible "to adduce reasonable meaning from [the words]". 1. (1904) 1 C.L.R. 585, at p. 622. 2. (1904) 1 C.L.R., at pp. 626-627. 3. (1904) 1 C.L.R., at p. 630.

The point was again referred to in Baxter v. Commissioner of Taxation (N.S.W.) [36] where Griffith C.J., Barton and O'Connor JJ. said when speaking of s. 74 [37] :

The 74th section was not passed in the form originally proposed, but was altered to read as first quoted. We do not refer, though we are inclined to think that reference might be made, to the intermediate negotiations on the result of which the fate of the Constitution hung in the balance. 1. (1907) 4 C.L.R. 1087. 2. (1907) 4 C.L.R., at p. 1115.

In Bank of New South Wales v. The Commonwealth [38] Dixon J. in dealing with s. 75 (iii), said:

Section 75 (iii.) cannot be read without s. 75 (v.) which, it is apparent, was written into the instrument to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power. There is the strongest presumption that in using the expression "or person suing or being sued on behalf of the Commonwealth" the framers of the Constitution were not concerned with the Attorney-General or any other officer by or through whom the Crown might come or be brought into court. In s. 75 (iv.), referring to the States as parties, there is no concern on this procedural topic. But what they were concerned with was amenability to the jurisdiction of persons in whom causes of action were vested, or against whom causes of action lay, but in their official capacity only and as agencies or emanations of the Commonwealth. This view is completely confirmed by the history of the provision, which explains, if indeed it does not illuminate, the whole matter. The source of s. 75 lies in Article III., s. 2, of the Constitution of the United States. and [39] : From all this it is apparent that when the framers of the Commonwealth Constitution took up the study of the Constitution of the United States with a view to modelling upon it the new Australian instrument of Government, and reached the clause in question, the first difficulty they must have encountered was to say how stood suits against officers and agents of the United States. We may be permitted to know as a matter of history that what is now s. 75 (iii.) appeared in its present form in the draft Constitution presented at the Convention of 1891 and that before it so emerged it had gone through the hands of Sir Samuel Griffith who had before him the report of the Judicial Committee over which Inglis Clark J. presided.

Anyone who takes Article III. of the American Constitution and acquaints himself with the difficulties that arose under it and the manner in which they were dealt with by the Supreme Court and Congress and then compares it with Chapter III. of our Constitution will at once see that the text of the latter is the outcome of much knowledge of the judicial exegesis by which judicial power of the United States has been defined. The addition of the words "or a person suing or being sued on behalf of the Commonwealth" appear appropriate to ensure that the jurisdiction over matters in which the Commonwealth is a party should not be limited to cases in which the Commonwealth is a party on the record and to ensure that on the contrary it covered officers and agencies of the Government sued or suing in their official or governmental capacity such as those whose position had been the cause of so much trouble in the United States.

However in Victoria v. The Commonwealth (the Second Uniform Tax Case) [40] his Honour appears to take a more limited view and said: Section 96 forms part of the financial clauses of the Constitution which we know as a matter of history were the final outcome of the prolonged attempts to reconcile the conflicting views and interests of the colonies on that most difficult of matters.

The fact that it came out of the Premiers' Conference of 1899 (see the Victorian statute Australasian Federation Enabling Act 1899 (No. 1603) particularly s. 2 and first schedule), when the opening words of s. 87 (the Braddon clause) were inserted, does not assist in its construction nor ought the fact to be used for such a purpose, notwithstanding that now it has a place, however inconspicuous, as part of the history of the country.

But the extent of this difference, if difference it be, does not appear to me to be material to this case for all the matters of history which I regard as helpful in the construction of the third paragraph of s. 74 have been referred to in the early cases which I have already cited, save only the reference to the form which s. 74 took at the time the Bill was introduced into the United Kingdom Parliament. 1. (1948) 76 C.L.R. 1, at p. 363. 2. (1948) 76 C.L.R., at pp. 366-367. 3. (1957) 99 C.L.R. 575, at p. 603.

The events of 1900 are fully described in Ch. 18 of Pt IV of Quick and Garran's Annotated Constitution of the Australian Commonwealth, pp. 228-249. The form in which s. 74 appears in the Schedule to the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12) differs significantly from the form in which it appeared in the draft Constitution approved by a referendum held in each of the States other than Western Australia in 1899, which was submitted to the United Kingdom Government for enactment by the Parliament at Westminster. The version of the proposed Constitution as so submitted appears in the Second Schedule to the Australasian Federation Enabling Act 1898 Vict. (Act No. 1603). Section 74 then read as follows:

No appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are involved.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise, by virtue of Her Royal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But The Parliament may make laws limiting the matters in which such leave may be asked.

That Act provided for the holding of a referendum to ascertain whether the voters in Victoria approved entry into a federation on the terms set out in the Schedule.

It is a matter of history, which we may properly take into account in considering the proper construction and operation of the Constitution, that that clause was the principal subject of disagreement between the Imperial Government and the delegation headed by Mr. Edmund Barton which represented all the federating colonies (and Western Australia) in London at the time when the Bill was to be submitted to the Imperial Parliament. It had been agreed at a conference of the premiers of the colonies in January 1900 that the delegation should represent all the federating colonies in unitedly urging the passage of the Bill through the United Kingdom Parliament without amendment and explaining any legal or constitutional questions which might arise (Quick and Garran, pp. 228-229).

The principal problem which the delegation encountered was the opposition of the Crown Law officers to s. 74. In the end s. 74 became the only outstanding issue and a number of objections were made to it on a variety of grounds which may be found set out in Quick and Garran, at p. 235, the nature of which is not material for the present purposes, any more than the arguments then advanced for and against the retention of the Privy Council as a final court of appeal are material. In the Bill for the Commonwealth of Australia Constitution Act, as it was introduced into the Imperial Parliament in May 1900, s. 74 of the Constitution as scheduled to the Victorian Act and presented to the authorities in London was omitted altogether, but the numerical order was preserved by making the last paragraph of s. 73 a separate section numbered 74. There were other differences of a minor character which were adjusted at the same time but they are not material. That version would have left the Royal prerogative to grant special leave to appeal unlimited in extent in respect of decisions of the High Court, subject only to the procedural requirements of the Imperial Act, 3 & 4 William IV c. 41. However an appeal as of right from the High Court would not have been possible in view of the provision in s. 73 that its decisions were to be final and conclusive - see McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [41] , per Dixon J.

Ultimately, after the Bill had been introduced in the United Kingdom Parliament, a "final compromise" was reached in London on the form of s. 74, and approved by the governments of the five colonies. The compromise suggestion made by Mr. Chamberlain, the Secretary of State for the Colonies, was to substitute for the first paragraph of s. 74 in the form as approved in Australia the following two paragraphs:

No question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, shall be capable of final decision except by the High Court, and no appeal shall be permitted to the Queen in Council from any decision of the High Court on any such question unless by the consent of the executive government or governments concerned, to be signified in writing by the Governor-General in the case of the Commonwealth by the Governor in the case of any State.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

and to restore what had been the second paragraph of the original s. 74. Amendments were introduced to the Bill to give effect to this agreement and at the same time what had been originally the last paragraph of s. 73 was restored to its position in that section. The Bill was passed in that form and on 9th July 1900 Royal assent was given.

It is, I think, clear from the history of the draft, from the form of the Bill as introduced and from the course of the amendments made that the United Kingdom authorities attached great importance to the retention of the appeal to the Privy Council and ultimately to the retention of Imperial control of the extent of the permitted limitations on that appeal. Thus they conceded that, in the limited class of constitutional questions referred to in the first paragraph of s. 74, access to the Privy Council was to depend on the grant of a certificate by the High Court and not on the grant of leave by the Privy Council. At the same time they restored the power of the Commonwealth Parliament to "make laws limiting the matters in which such leave may be asked" but imposed a stringent restriction by adding a proviso in the following form: "but proposed laws containing any such limitations shall be reserved by the Governor-General for Her Majesty's pleasure". This is in fact the only provision in the Constitution requiring that a class of proposed laws must be so reserved.

A further matter relevant to the acceptance of the third paragraph by the United Kingdom Government was that at that time there was at least some authority, perhaps indeed substantial authority, for the view that a colonial legislature had power to control or abrogate the right to "appeals as of grace", as well as "appeals as of right" to the Privy Council, so long as express words were used. This is shown by such cases as Cuvillier v. Aylwin [42] ; Reg. v. Eduljee Byramjee [43] ; Reg. v. Stephenson [44] ; In re Louis Marois [45] ; and Théberge v. Laudry [46] . It was not until 1926 that it was established by the decision of the Privy Council in Nadan v. The King [47] that it required an Act of the Imperial Parliament to exclude the prerogative to grant special leave. This disability remained until the passage of the Statute of Westminster 1931 - Attorney-General (Ontario) v. Attorney-General (Canada) [48] .

1. (1832) 2 Knapp. 72 [ 12 E.R. 406]. 2. (1846) 3 Moo. Ind. App. 468 [ 18 E.R. 577]. 3. (1847) 3 Moo. Ind. App. 488 [ 18 E.R. 586]. 4. (1862) 15 Moo. P.C. 189 [ 15 E.R. 465]. 5. (1876) 2 App. Cas. 102. 6. [1926] A.C. 482. 7. [1947] A.C. 127.

In ss. 58, 59 and 60 of the Constitution a substantial degree of control over the laws passed by the Parliament was retained by the United Kingdom authorities, though in fact no objection was taken to either of those sections. Indeed their form had remained unchanged since the draft prepared by the Convention in 1891. Section 58 provides that when a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent he shall declare, "according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure". The quoted part of s. 58 is in substantially the same form as s. 31 of the Act for the Government of New South Wales and Van Diemen's Land 1842 (5 & 6 Vict. c. 76), save for the significant omission of any reference to Her Majesty's instructions. In that Act the phrase had been "according to his discretion but subject nevertheless to the provisions of this Act and to such instructions as may from time to time be given in that behalf by Her Majesty Her Heirs or Successors " A similar provision was included in the Act for the better Government of Her Majesty's Australian colonies 1850 (13 & 14 Vict. c. 59) which created Victoria as a separate colony. The Constitution Statute of New South Wales (18 & 19 Vict. c. 54) and the Constitution Statute of Victoria (18 & 19 Vict. c. 55) continued the operation of the provisions requiring the Governor to assent to or reserve Bills in conformity with Her Majesty's instructions (see Quick and Garran, pp. 690-691). The problems which arose with respect to the general form of instructions to colonial governors and the text of those instructions are discussed in Quick and Garran (pp. 392-400 and 690-691). Those instructions had been in a very restrictive form until 1892 in the Australian colonies but were then changed as a result in part at least of substantial criticism in 1887 by Higinbotham C.J., when Attorney-General of Victoria. The new form however still retained a list of the kinds of Bill which the Governors were required not to assent to without reserving them for Her Majesty's instructions including "any Bill of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies, may be prejudiced". A different form of instructions however had been used in relation to Canada since 1878 which omitted the clause which prescribed the classes of Bills which were required to be reserved for Her Majesty's assent. (See Todd's Parliamentary Government in the British Colonies, 2nd ed. (1894), p. 163). It was expected by Quick and Garran (p. 691) that the instructions to the Governor-General of the Commonwealth would be in the Canadian form and they comment that "Indeed, according to a strict interpretation of sec. 58 of the Constitution of the Commonwealth it would not be legal for Her Majesty, through the Secretary of State for the Colonies, to fetter the discretion of the Governor-General by instructions such as those which, with unquestionable legality, were given under the authority of the Act 5 and 6 Vic. c. 76, ss. 31 and 40. The Governor-General is authorized to assent in the Queen's name to Bills, to withhold the Royal assent to Bills, or to reserve Bills for the signification of the Queen's pleasure, "according to his discretion," and subject only to the Constitution; not subject to instructions, as under the Act of 1842." It is to be observed, however, the assent by a colonial governor contrary to his instructions did not, at least after 1865, produce invalidity in view of the provisions of the Colonial Laws Validity Act 1865 which applied to past as well as future colonial laws.

The effect of the addition of the proviso to the third paragraph of s. 74 was, so far as the laws there referred to were concerned, to build into the Constitution itself a restriction previously embodied in the instructions to colonial governors, which had been abandoned for Canada and was expected to be abandoned for the Commonwealth.

Section 59 provides that "The Queen may disallow any law within one year from the Governor-General's assent". This section also is derived from the same earlier legislation and from the British North America Act, 1867, save for reduction of the period from two years to one, and provides that upon such disallowance being duly notified it "shall annul the law from the day when the disallowance is so made known".

Both in the case of the reservation for the Queen's pleasure and in the case of the disallowance by the Queen of any law, the advice to the Queen at that time would have come from the Privy Council in London, i.e. the executive government of the United Kingdom. She would not then have been acting on the advice of the executive government of Australia. It is clear that at that time the Governor-General was regarded as the Queen's representative in the carrying out of instructions from the Queen, that is to say, from the United Kingdom Government. To present day eyes these powers of Her Majesty acting on the advice of the United Kingdom Government seem very large, as indeed they were, and initially one may be tempted to wonder why they were accepted, much more why they were proposed, by the Conventions and the colonial governments. However, so to wonder is to mistake the spirit of those times and to forget the great changes wrought by more than seventy years of history. The way in which those provisions were regarded in 1900 is well illustrated in the following passages from Quick and Garran (at pp. 692-693):

In the abandonment of power to regulate, by instructions, the Governor-General's discretion in assenting to, with-holding assent from, or reserving, Bills presented to him for the Royal Assent, the Crown has not relinquished one iota of its rightful authority, nor has the paramount sovereignty of the Imperial Parliament been in the smallest degree abated or impaired.

At the same time the grant of a constitutional discretion to the Governor-General is quite compatible with the existence and maintenance of that supreme supervision over all the affairs of the Empire, which is exercised by the Queen through her Imperial Ministers. Even after the Governor-General has assented to a law, the ultimate power of disallowance is, by the Constitution, reserved to the Queen, subject only to the condition that the right of disallowance must be exercised within one year from the date of the Governor-General's assent. Consequently if a Bill assented to by the Governor-General is afterwards found by the Imperial Government to contain matter which justifies the interposition of the Royal veto, so as to suspend its operation, it may be disallowed, pursuant to the power reserved in the Crown. This method of conserving Imperial interests is more satisfactory, and more in harmony with the larger measure of self-government granted by the Constitution, than the old system of instructing the Governor not to assent to certain classes of Bills, many of which were quite within the competence of the colonial legislatures and related to matters of purely local interests.

So understood the change in the form of the last paragraph of s. 74 retained for the United Kingdom Government what was then regarded correctly as complete control over any restriction, direct or indirect, on the prerogative to grant special leave to appeal. It was in a form familiar to colonial politicians, and not then seen as significantly different from s. 58 because the Governor-General was then thought of as the representative of the Queen as advised by the United Kingdom Government. It would have been obvious however that the requirement of reservation for Her Majesty's pleasure was a more convenient, and less potentially objectionable, course than reliance on the power of disallowance after the event under s. 59.

The power of Her Majesty to withhold consent in the case of a reserved law was by no means a dead letter. During the first ten years of the Commonwealth there was, at least on one occasion, a Bill reserved for the Royal assent which assent was not forthcoming, namely, the Customs Act 1906 and that of course was done upon the advice of the executive government in the United Kingdom (see Harrison Moore, Constitution of the Commonwealth of Australia (1910), p. 110). There does not appear to have been an occasion on which the power to disallow was exercised.

However the changes wrought by the First World War and recognized at the Imperial Conference in 1926 had a profound effect on the practical operation of these sections. It was there declared that in respect of such matters Her Majesty's powers were to be exercised upon the advice of the executive government of the Commonwealth of Australia and not of the United Kingdom. See, e.g., Nicholas, Australian Constitution (1950), p. 72 where pars 32 to 34 of the Committee's report which sets this out specifically are quoted in full. This declaration as to constitutional practice represented an abandonment of the carefully preserved power of the Crown as advised by the United Kingdom ministers to control legislation by the exercise of the right and the power to advise Her Majesty on these matters. The change though only informally acknowledged was effective immediately so far as executive action was concerned.

The history of s. 74 to which I have referred demonstrates that the object was to retain Imperial control over whatever restrictions might be sought to be placed on the jurisdiction of the Privy Council to grant special leave to appeal from the High Court, save in inter se matters. The objective was to be achieved, not by narrowing the field in which the power of the Commonwealth Parliament could be exercised, but by retaining in the United Kingdom Government a power in effect to veto any such legislation by refusal of the Royal assent. The changes to the last paragraph of s. 74 necessarily, as constitutional practice then stood, gave to the Imperial Government through the Queen complete control over Australian Acts to restrict the making of leave to appeal. The insistence on retention of this control appears to me to accept, indeed to have been brought about by, the width of the power of the Parliament under s. 74. There is certainly nothing in the history to suggest that the power in s. 74 was to be read in a narrow or restrictive way, indeed all the indications are to the contrary.

The expression "laws limiting the matters etc." involves questions as to the meaning of the two words "limiting" and "matters". The Privy Council in Kitano's Case [49] gave to the word "matters" a wide meaning, not restricted to such "matters" as are referred to in ss. 73, 75 and 76 and that decision is not challenged. The Privy Council expressed no view on whether the word "limiting" could cover complete abolition. It was, however, argued in the present case that the word "limiting" required that there must for all time remain some "matters" in which special leave may be sought and that accordingly the 1975 Act is invalid because it precludes any application in all the matters in respect of which, at the time of its enactment, applications for special leave might be made. It was further argued that the word "matters" referred to the subject matter of the litigation and that limitation by reference to any other factor was not permissible.

The word "limit", whether as a noun or as a transitive verb, has many applications and a range of meanings. Included in its meanings as a verb is "to terminate" as may be seen from the quotation by Quick and Garran (p. 763) from Webster's Dictionary, being in fact the 1898 Australasian edition of that dictionary, and as a noun one of its recognized meanings is a "terminal point" or "that which terminates, circumscribes, restrains or confines". The context will always be important in ascertaining the particular application. By this I mean not merely the verbal context but, in the present case, also the constitutional and historical context. The latter includes the cases, referred to above, which supported the view that a colonial legislature could by express words abrogate the prerogative to grant leave to appeal and to entertain appeals from colonial courts. Those cases are as important to an understanding of the effect of s. 74 as they are to an understanding of its acceptance by the United Kingdom Government. In that context there appears to me to be no reason for giving a restricted meaning to the word "limiting" or for restricting the criteria by which the limitation may be imposed; indeed there is good reason for not doing so.

In Kitano v. The Commonwealth [50] it was said by the Privy Council that:

A second argument was based upon the use of the word "matters" in the last sentence of s. 74, the suggestion being that any limitation must be by subject matter, which must be specified in the limiting enactment and which must be one of the matters mentioned in ss. 75 and 76. In their Lordships' opinion however, the word "matters" which also appears in ss. 75 and 76 (relating to the original jurisdiction of the High Court) is not to be so read. However necessary it may be, in view of the terms of ss. 75 and 76, to limit the application of "matters" in those sections, their Lordships have no doubt that in s. 74 a general construction must be applied to the word. 1. (1975) 132 C.L.R., at p. 234; [1976] A.C., at p. 103.

I do not read that statement as expressly indicating any conclusion by their Lordships on the argument that the limitation must be expressed by way of subject matter. However it appears to me to be necessarily implicit in the decision. I do not think it sufficient simply to rely on their Lordships' observation for they may well have regarded the argument as involving only a single proposition, namely, that the limitation must be by reference to the subject matters specified in ss. 75 and 76.

I regard the rejection of the argument that a limitation must be by reference to subject matter as necessarily implicit in the decision because the limitation in the 1968-1973 Act held to be valid was not by reference to subject matter. The limitation thereby imposed was by way of the exclusion of all applications for leave save those specified in pars (a) and (b) of s. 3 (1), a criterion not itself dependent on subject matter. Moreover par. (a) of s. 3 (1) defines the retained area by reference to the courts from which the appeals to the High Court had come, but excludes therefrom the matters referred to in par. (b). Assuming for present purposes that those exceptions may properly be regarded as expressed by reference to the subject matter of the relevant litigation, it still remains that both par. (a) defining the retained area and the general exclusion effected by the opening words of sub-s. (1) of all save par. (a) as modified by par. (b), do not operate by reference to subject matter.

While giving a wide interpretation to the word "matters", it is necessary to contrast it with the word "question" in the first part of s. 74, as did Isaacs J. in Pirrie v. McFarlane [51] where he said:

The word "matter" in sec. 76 does not, of course, mean simply the particular constitutional question or other legal question which identifies the litigation with the section. In this it differs essentially from the word "question" in sec. 74. "Matter" means the whole controversy - the matter litigated (see South Australia v. Victoria [52] ). For instance, looking at sec. 75, the "matter" would not necessarily be simply that part of the controversy depending on the construction or effect of a treaty, or that part of the controversy relating to a consul or the Commonwealth. There might be other necessary parties and other essential questions, all of which would be factors constituting the "matter," The controversy is not intended to be decided piecemeal by different tribunals, State and Federal. 1. (1925) 36 C.L.R. 170, at p. 198. 2. (1911) 12 C.L.R. 667.

The decision of the Privy Council may perhaps appear to take a different view from the dictum of Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. in In re Judiciary Act 1903-1920 and In re Navigation Act 1912-1920 [53] : "The word "matter" is used several times in Chapter III of the Constitution (secs. 73, 74, 75, 76, 77), and always, we think, with the same meaning", but the context shows that they were concerned only with that aspect of its meaning which confines the word "matter" to disputes between parties involving "some right, privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law". There is accordingly no relevant difference in view between the two cases.

The question thus remains whether in s. 74 the word "matter" means the point or question raised in the appeal decided by the High Court or the proceeding itself. Appeals are made from decisions, whether the grounds for appeal relate to all or some only or to one only of the points or questions decided in the court below, and it is in this sense that the word "matter" is, in my opinion, used in s. 74. It is in accordance with ordinary usage to speak of a "matter" before this Court or before the Privy Council, or indeed before any court. In such usage the word refers to the cause, proceeding or action, not to the content or points arising therein. So understood the word "matters" in s. 74 involves no necessary relation to the "subject matter" of proceedings, whether original or appellate, in the High Court. Thus there is no restriction to be implied on the power of "limiting" so as to confine it to limitations by reference to subject matter.

Accordingly the limitations may properly be by reference to time or any other factor chosen by the Parliament, for example, the identity of parties, the grant of leave by the High Court itself, or by simple termination as from the date of the Act itself. In the present case the 1975 Act limits the matters in which leave may be sought by reference to the time at which proceedings were commenced in a lower court. By doing so it imposes a valid limitation within the power given to the Parliament by s. 74.

I do not need to add to what other members of the Court have said with respect to the standing of the Attorney-General to commence these proceedings. I also agree that this is not an appropriate case for an injunction.

I am of opinion that a declaration should be made in the form sought by the statement of claim.