Commonwealth v Queensland

(2) The questions and matters to which this section relates are questions or matters which, whether as part of any cause or otherwise, and whether in the course of any proceedings in any court in Queensland or otherwise, arise under or concern any law in force in Queensland (including the prerogatives of Her Majesty in right of Queensland) or which otherwise substantially relate to the peace, welfare and good government of Queensland.

(3) On any application under subsection (1) the Court shall by order either grant the certificate, in the terms specified by the Attorney-General or with amendments, or refuse the grant of such a certificate.

(4) Where the Court by order refuses the grant of such a certificate or grants the certificate on amended terms, the Attorney-General may appeal to Her Majesty in Council against that order and, where the appeal is upheld, the Court shall make an order granting the certificate.

The section must be read with s. 3 of the said Act because the application of the Attorney-General to the court is in respect of questions or matters which ought to be referred to the Judicial Committee under, inter alia, the provisions of the Appeals and Special Reference Act 1973 Q.. Section 3 provides as follows:

(1) It shall be lawful for Her Majesty to refer to the Judicial Committee for hearing and consideration any question or matter to which this section relates, and the Judicial Committee may thereupon hear and consider the same and advise Her Majesty thereon.

(2) The questions and matters to which this section relates are questions or matters which, whether as part of any cause or otherwise, and whether in the course of any proceedings in any court in Queensland or otherwise, arise under or concern any law in force in Queensland (including the prerogatives of Her Majesty in right of Queensland) or which otherwise substantially relate to the peace, welfare and good government of Queensland.

On 11th September 1974 the Commonwealth commenced proceedings in this Court against the State of Queensland and the Attorney-General of that State claiming a declaration that the provisions of the Appeals and Special Reference Act 1973 Q. do not validly authorize the said Attorney-General to commence or maintain the said application in the Supreme Court of Queensland and do not authorize the Supreme Court of Queensland to entertain the application or to grant all or any part of the order sought by the Attorney-General in that application and do not validly authorize the Governor in Council of the State of Queensland to request Her Majesty to refer the said questions or matters to the Judicial Committee. It also sought a declaration that to the extent that the provisions of the said Act purported to authorize these things the said provisions were invalid. An injunction was sought restraining the Attorney-General from taking any further step in relation to the said application or in relation to any order made or certificate granted thereon.

The defence admitted the substantial allegations in the statement of claim. It further recounted that on 18th September 1974 the Full Court of the Supreme Court of Queensland upon the hearing of the application by the Queensland Attorney-General made an order granting a certificate that the questions or matters referred to in pars 1, 2 and 3 of the notice of motion were questions or matters which by reason of their great general or public importance ought to be referred to the Judicial Committee for hearing and consideration and advice thereon. The defence claimed that the Appeals and Special Reference Act 1973 was a valid enactment of the legislature of Queensland and that the defendants have, in and in relation to the events pleaded in the statement of claim, acted lawfully. By a further defence of 3rd December 1974 the defendants recounted that on 29th November 1974 the Governor of the State of Queensland with the advice of the Executive Council despatched to Her Majesty a request to refer the questions or matters so certified by the Supreme Court of Queensland to the Judicial Committee of the Privy Council for hearing and consideration and advice thereon.

The plaintiff Commonwealth demurred to the whole of the defence and further defence. The grounds of this demurrer were as follows:

(1) The Queensland Parliament has no power to confer upon Her Majesty an authority to refer to the Privy Council for hearing consideration and advice

(b) any question or matter arising under the Constitution or involving its interpretation or arising under any laws made by the Parliament of the Commonwealth,

and any law of the Queensland Parliament purporting to do so is invalid;

(2) The questions set forth in the notice of motion alleged in par. 4 of the statement of claim raise questions as to the limits inter se of the constitutional powers of the Commonwealth and the State of Queensland and questions the answers to which do or may affect the interests of the Commonwealth and -

(a) it is beyond the power of the Parliament of Queensland to authorize Her Majesty to refer to the Judicial Committee any of those questions for hearing consideration and advice; and

(b) the Judicial Committee Act 1833 (3 & 4 William IV, c. 41) does not authorize Her Majesty to refer to the Judicial Committee any of those questions for hearing consideration and advice;

(3) The Appeals and Special Reference Act 1973 would, if valid, alter the Constitution of the State of Queensland otherwise than in accordance with the Constitution of the State of Queensland and by virtue of section 106 of the Constitution is beyond the powers of the Parliament of Queensland.

The Commonwealth also demurred to that paragraph of the defence which claimed that the Appeals and Special Reference Act 1973 was a valid enactment of the legislature of Queensland and that the defendants had acted lawfully.

The defendants have moved to set aside the whole of the plaintiff's demurrer as disclosing no grounds or only frivolous grounds of demurrer. The basis of this application is that, whereas the statement of claims seeks relief limited to the particular questions or matters in respect of which the second-named defendant moved the Supreme Court of Queensland, the demurrer includes among its grounds some which claim that the Appeals and Special Reference Act 1973 is beyond the power of the Queensland Parliament for reasons related not to the Australian Constitution or any law of the Parliament of the Commonwealth but to legislation of the Imperial Parliament and to the Constitution of the State of Queensland. However, the defendants in their defence pleaded that the Appeals and Special Reference Act 1973 was a valid enactment of the legislature of Queensland and that the defendants had acted lawfully. This was pleaded in general terms and the only answer to such matter when it is raised in a defence is a demurrer for it raises an issue of law and no issue of fact. Once it is raised, then it is open to the demurring party to support the demurrer on any ground. Thus a ground of demurrer which requires the determination of questions of law which do not necessarily require determination for the resolution of the issues immediately raised by the matters alleged in the statement of claim may be a proper ground of demurrer. This application to set aside the demurrer cannot succeed.

The reference to the Judicial Committee of the Privy Council (under the Appeals and Special Reference Act 1973) which is sought to be restrained in this action is of questions which arise under the Australian Constitution and involves its interpretation and of questions arising under laws made by the Parliament of the Commonwealth. The defendants admit that this is so but say that all that the legislation does is to declare the power of Her Majesty to obtain advice from her Judicial Committee and, by s. 4, to provide a procedure whereby it may be made to appear to Her Majesty that she ought to obtain that advice from the Judicial Committee. The submission and, in its reference to "question" as well as "matter" probably the Act itself, confuse the different kinds of advice which the Queen receives from the Privy Council, and confuse the judicial duty of report and recommendation upon any "matter" referred to it, which is the duty imposed on the Judicial Committee by s. 4 of the Act 3 & 4 Wm. IV c. 41, with the duty imposed on every member of the Privy Council, including the judicial members, to tender advice to the Queen on any question when he or she is commanded so to do. It is a fatal confusion.

"Judicial Committee" is defined in the Appeals and Special Reference Act 1973 Q. to mean the Judicial Committee of Her Majesty's Privy Council as is at the commencement of the Act provided for by any Act of the Parliament of the United Kingdom, and as is for the time being provided for by any Order in Council or other instrument constituting or enabling the Judicial Committee for purposes connected with appeals or other questions or matters arising in or in relation to Queensland. The Act of the Parliament of the United Kingdom which provided for the Judicial Committee is the 1833 Act 3 & 4 Wm. IV c. 41. The ancient prerogative court constituted by Her Majesty in Council had long carried out its functions through a committee of the Council which would perform the curial function and would report to Her Majesty in Council. Its report would be embodied in an Order in Council. The proceedings of the committee were public and its report or advice was made public before its embodiment in an Order in Council. The 1833 Act, for the first time, provided how this committee should be constituted. It provided that the President of the Council, the Lord High Chancellor, and the present or former holders of certain offices, mostly judicial, should form a committee of the Privy Council styled "the Judicial Committee of the Privy Council". Section 3 of the 1833 Act provided that all appeals which might be brought to His Majesty in Council should thereafter be referred by His Majesty to the said Judicial Committee and that such appeals should be heard by the Judicial Committee and a report or recommendation thereon made to His Majesty in Council for his decision thereon as theretofore in the same manner and form as had been theretofore the custom with respect to matters referred by His Majesty to the whole of his Privy Council or a committee thereof, the nature of such report or recommendation to be always stated in open court. Then s. 4 provided that it should be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty should think fit, and such committee should thereupon hear or consider the same, and should advise His Majesty thereon in manner aforesaid.

The appeals under s. 3 and the matters under s. 4 are clearly appeals and matters which require the exercise of the judicial functions of hearing and determination. The Judicial Committee is not a court in the sense that by a full delegation of the royal power it dispenses the Queen's justice, but it is a judicial body whose determinations in its reports or recommendations are invariably carried into effect by the Queen as the dispenser of justice. The question whether the Queen is bound to give effect to the advice or report of the Judicial Committee is otiose. It is resolved by a convention of the Constitution a departure from which need not even be contemplated. " we are really a Committee of the Privy Council giving advice to His Majesty, but in a judicial spirit. We have nothing to do with politics, or policies, or party considerations; we are really Judges, but in form and in name we are the Committee of the Privy Council. The Sovereign gives the judgment himself, and always acts upon the report which we make. Our report is made public before it is sent up to the Sovereign in Council. It is delivered here in a printed form. It is a report as to what is proper to be done on the principles of justice, and it is acted on by the Sovereign in full Privy Council; so that you see, in substance, what takes place is a strictly judicial proceeding.", per Viscount Haldane in Hull v. McKenna [25] . See also British Coal Corporation v. The King [26] and Ibralebbe v. The Queen [27] .

1. [1926] I.R. 402, at p. 403. 2. [1935] A.C. 500, at pp. 510-511. 3. [1964] A.C. 900, at p. 919.

The judicial function of the Judicial Committee is no different under s. 4 of the 1833 Act, when a matter is referred to it by Her Majesty for hearing or consideration, from its functions under s. 3, when appeals are referred to it by Her Majesty. Holdsworth in his History of English Law, vol. 1, pp. 524-525, states:

Under the statutory power many miscellaneous questions have been so referred - a dispute between the legislative Council and the legislative assembly of Queensland (Safford and Wheeler, 775); a question as to the validity of certain Orders in Council relating to Jersey (In the matter of the States of Jersey [28] ); disputes between two prelates (In re the Lord Bishop of Natal [29] ); a dispute between the Legislative Council of Southern Rhodesia and the British South Africa Company (In re Southern Rhodesia [30] ). When matters are thus referred to the Judicial Committee the question is discussed merely judicially. If it is desired to discuss them from a political point of view the matter is referred to a mixed committee (Safford and Wheeler, 770). 1. (1853) 8 S.T. N.S. 285. 2. (1864) 3 Moo. P.C. N.S. 116, at pp. 156, 157 [16 E.R. 43, at pp. 44, 58, 59]. 3. [1919] A.C. 211.

Quite apart from the functions imposed upon the Judicial Committee of the Privy Council by the 1833 Act, there remain intact the function and the duty of the Privy Council to act as the advisers of Her Majesty in respect of all her functions. The members of the Judicial Committee of the Privy Council may no doubt be called upon to advise Her Majesty upon any matter or question. However, in that event they would tender their advice not as the Judicial Committee under the 1833 Act but as a committee of the Council advising the Queen. By s. 21 of the 1833 Act it was provided that nothing in that Act should impeach or abridge the powers, jurisdiction or authority of the Privy Council as theretofore exercised by the Council or in anywise alter the constitution or duties of the said Privy Council except so far as the same were expressly altered by the Act and except for the purposes stated in the Act. It is therefore open to Her Majesty to refer to such members of her Council as she thinks fit, including members who are members of the Judicial Committee, any question at all upon which she requires advice. The advice which she receives may or may not be acted upon and whether it be so or not it need not be made public, for the counsels of the Sovereign in Council when not exercising the judicial function are secret. However, when the Sovereign in Council is exercising the judicial function she must do so on the report and recommendation of the Judicial Committee of the Privy Council and the hearing by and the report or recommendation of the Judicial Committee are always open.

Section 3, and consequently s. 4, of the Appeals and Special Reference Act 1973 Q. unfortunately confuse the functions of the members of Her Majesty's Privy Council who are also members of its Judicial Committee. Though it may be accepted that there is nothing unlawful in the legislature of any part of Her Majesty's Dominions making particular provision for the exercise by the Judicial Committee of its powers within the broad terms of the 1833 Act (and this has commonly been done, at least in respect of appeals to Her Majesty in Council: see Woolworths (New Zealand) Ltd. v. Wynne [31] , where the law and practice are fully reviewed), it has no power whatsoever to express in legislation a right, power or duty of Her Majesty to refer to the Judicial Committee or to her Council or any of its members any question upon which she requires advice as distinct from an appeal or a "matter" upon which the Judicial Committee may under the 1833 Act make a report or recommendation to Her Majesty as the fount or dispenser of justice within that area of jurisdiction still remaining with the Sovereign in Council. Any such expression of the Queen's rights or power or duty to be advised by members of her Council, if it were to receive statutory expression, would be by statute of the Imperial Parliament. However, the characteristic flexibility of concepts found in the British constitution makes it unnecessary in the United Kingdom to draw a rigid distinction between the role of the Judicial Committee under its statutes and the role of its members as members of the Privy Council advising the Sovereign. This is reflected in the reasoning of Lord Loreburn L.C. in the advice in Attorney-General (Ontario) v. Attorney-General (Canada) [32] . I find it reflected also in the Queensland Money Bills reference of 1885-1886. Though the Queen in Council referred the question to the Judicial Committee, it is clear from the papers that the report dated 27th March 1886 was not published in open court before being placed before Her Majesty in Council and that the answers to the questions were sent to the Colonial Office and published after consideration by the Queen in Council. This is not the practice which ss. 3 and 4 of the 1833 Act require.

1. [1952] N.Z.L.R. 496. 2. [1912] A.C. 571, at p. 588.

If by s. 3 of the Appeals and Special Reference Act 1973 it is intended to state in the form of a Queensland statute the right or power of the Queen to be advised by her Privy Council on any question whatever, it may thus first be said that the Queensland legislature has no power to express that right or power, and it may secondly be said that in any event it cannot require that right, power or duty of Her Majesty to be exercised by taking advice from the Judicial Committee as it is constituted under the 1833 Act. The functions of the Judicial Committee as such do not impinge upon the functions of the Privy Council in advising the Queen.

On the other hand, if, as I think is so, by s. 3 of the Appeals and Special Reference Act 1973 it is intended to express the right of Her Majesty to refer a matter to the Judicial Committee for judicial report and recommendation, it does not appear to me that a matter capable of such report and recommendation can originate in the Judicial Committee of the Privy Council at least in respect of questions arising under the Australian Constitution and involving its interpretation or of questions which arise under laws made by the Parliament of the Commonwealth. The Imperial Parliament has by the Commonwealth of Australia Constitution Act made provisions which are not consistent with such matters originating in the Judicial Committee. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court and in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. The argument on behalf of the defendants depends upon the submission that a reference of the proposed questions to the Judicial Committee, although it is a reference of a "matter" under s. 4 of the 1833 Act, is not a reference of a "matter" under either s. 75 or s. 76 of the Constitution in that the questions proposed to be asked in the reference are hypothetical questions.

It was held in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [33] that the determination of questions of law on a reference to the High Court was clearly a judicial function and could only be made, if at all, on an exercise of part of the judicial power of the Commonwealth [34] . It was of course held that the determination of such questions, when they do not arise in a legal proceeding where there is some immediate right, duty or liability to be established by the determination of the Court, does not fall within the judicial power which may be exercised under Ch. III. Thus judicial power is not co-extensive with the limits of judicial power which Ch. III of the Constitution prescribes: cf. Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [35] . But it was also held in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [33] that Ch. III was an exhaustive statement of the judicial power which may be conferred under the chapter. "This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction." [36] .

1. (1921) 29 C.L.R. 257. 2. (1921) 29 C.L.R., at p. 264. 3. (1967) 116 C.L.R. 273, at p. 277. 4. (1921) 29 C.L.R. 257. 5. (1921) 29 C.L.R., at p. 265.

In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [33] was not decided as a case where it was sought to impose a non-judicial function upon the High Court. If it had been, the law as then understood might not have caused this to be an invalidating characteristic. It was decided on the grounds which I have stated and has never been overruled.

It should be remarked that the contrary view, that an "advisory" decision involves no exercise of judicial power, would mean that on any subject of our constitutional or Commonwealth law a Supreme Court of a State could be invested with this power and could exercise it with no possibility of appeal to this Court as there would be no "judgment" within the meaning of s. 73 (see Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [37] ) but with an appeal to the Judicial Committee. See, e.g., In re the Initiative and Referendum Act [38] . It is unreal to regard this as of no consequence because the declarations of law are merely "opinions". No community could appreciate the significance of a distinction in such a context between judicial and non-judicial power. Much reliance was placed upon the statement of Lord Loreburn L.C. in Attorney-General (Ontario) v. Attorney-General (Canada) [39] that the answers to referred questions "are only advisory and will have no more effect than the opinions of the law officers". But though this is so in the sense that no parties are immediately bound by the determination as a res judicata, the decision is, "an authoritative declaration of the law" [40] . It may be noted that this statement was made in the judgment after Knox C.J. had in argument referred to Attorney-General (Ontario) v. Attorney-General (Canada) [41] .

1. (1967) 116 C.L.R. 273. 2. [1919] A.C. 935. 3. [1912] A.C., at p. 589. 4. (1921) 29 C.L.R., at p. 264. 5. [1912] A.C. 571.

There is little difference, if any, between a reference to a court by an Attorney-General of the Commonwealth of a question whether an Act is within Commonwealth power inter se provided that there is provision for representation of parties who have a contrary interest, namely, the States in whom the power would otherwise be vested, and an action by the Attorney-General claiming a declaration of the validity of such an Act; and I cannot conceive that it is correct that while the States may, as they undoubtedly can, claim that an Act is invalid as being outside Commonwealth power, the Commonwealth cannot claim a declaration that it is within such power but must await action by a State or States. The power to grant declaratory relief has never rested on any such principle. It may well be thought that there is no substantial difference between such a declaration and the judicial determination of a question of law.

It has been suggested that the function proposed to be imposed on the High Court by the Judiciary Act 1903-1920, s. 93, was not an exercise of judicial power:Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [42] ; on appeal to the Privy Council [43] , but I would respectfully adhere to the analysis and reasoning in this respect of the majority of the Court in their judgment in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 [44] . In Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [45] , the majority of the Court stated in respect of that proposed "opinion" jurisdiction, " if it was anything it was original jurisdiction and, as there was no "matter" within s. 76 made the subject of jurisdiction, it was outside the power to confer original jurisdiction. On the view that it was a kind of judicial power, it was enough to decide that the provision was an invalid attempt to enlarge the judicial power of the Commonwealth".

1. (1956) 94 C.L.R. 254, at pp. 272-273. 2. [1957] A.C. 288, at p. 316; (1957) 95 C.L.R. 529, at p. 541. 3. (1921) 29 C.L.R. 257. 4. (1956) 94 C.L.R., at p. 273.

In my opinion the judicial power delineated in Ch. III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss. 75 and 76, "matters" in those sections meaning "subject matters". This is so not only in respect of federal courts but also in respect of State courts whether or not they are exercising federal jurisdiction conferred on them under s. 77(iii). In respect of the subject matters set out in ss. 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch. III and if in respect of those matters an investing with federal jurisdiction of a State court does not enable it to perform the particular judicial function, then in respect of those matters the State court cannot under any law exercise that judicial function. Therefore, if in respect of those matters a State court exercising federal jurisdiction cannot give "advisory opinions" it cannot in respect of the same matters give such opinions in exercise of some State jurisdiction. Chapter III of the Constitution is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss. 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise in respect of those matters. A State thus could not empower one of its courts to give advisory opinions on those subject matters. The court would be exercising judicial power but not a judicial power envisaged by Ch. III and able to be conferred on it by the Commonwealth. It is then no answer to say that the State is conferring a judicial power which the Commonwealth is unable to confer. There is here no residuary State power, because Ch. III is an exhaustive enunciation.

What is true of a court within the territorial boundaries of a State is equally true of the Judicial Committee. Once it is recognized that the Judicial Committee is a judicial body and that it exercises judicial power and once it is recognized that Ch. III of the Constitution is an exhaustive statement of the kind of judicial power which may be conferred or exercised in respect of the subject matters set out in ss. 75 and 76 it is of no consequence in the present context that the Judicial Committee may consider and determine "matters" under s. 4 of the 1833 Act which are not "matters" under ss. 75 and 76. The subject matters under those sections of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch. III of the Constitution. Furthermore, although the Constitution envisages a duty in any State court to recognize and apply the provisions of the Constitution and the laws of the Commonwealth in all proceedings before it (whether or not in so doing it is exercising federal jurisdiction: see Felton v. Mulligan [46] ), it does not envisage an original jurisdiction in the Judicial Committee in the exercise of judicial power. Section 5 of the covering clauses and Ch. III of the Constitution proceed upon the basis that judicial functions within the Commonwealth will be exercised by State courts and by federal courts with rights of appeal as therein provided. The effect of the Commonwealth of Australia Constitution Act 1900 is to limit the prerogative to refer any matter to the Judicial Committee for the exercise of its judicial power in relation thereto (including its power to give an advisory opinion upon a question of law) by extinguishing the same at least in respect of subject matters of judicial power which fall within Ch. III of the Constitution.

(a) The giving of an advisory opinion on a question of law by a court is an exercise of judicial power.

(b) The giving of such an opinion is not a judicial power which can be conferred by the Commonwealth on federal or State courts in respect of the subject matters of judicial power set out in ss. 75 and 76.

(c) It is not a judicial power which can be conferred by a State on any of its courts in respect of those subject matters.

(d) It is not a judicial power which can be exercised in respect of those subject matters by the Judicial Committee on a referral of a matter to it by the Sovereign under the 1833 Act because the prerogative right to refer matters to the Judicial Committee for the exercise of the judicial power, including the power of giving an "advisory opinion", is extinguished at least in respect of those subject matters by the enactment by the Imperial Parliament of the Commonwealth of Australia Constitution Act.

As a result, therefore, the plaintiff is on the facts alleged by it entitled to the relief which it seeks in the statement of claim and is entitled to judgment on its demurrer to the defence.

This proceeding raises the issue of the validity of ss. 3 and 4 of the Appeals and Special Reference Act 1973 Q.. The proceeding came on as a motion by the defendant State and its Attorney-General to set aside the demurrer by the plaintiff as disclosing no grounds or frivolous grounds. The motion developed into a trial of the demurrer, on which the substantial issue of the validity of ss. 3 and 4 of the Appeals and Special Reference Act 1973 was argued fully.

An Act to make further provision for appeals from the Supreme Court to Her Majesty in Council and for the making of special references by Her Majesty to the Judicial Committee of Her Majesty's Privy Council at the request of the Governor in Council or otherwise, and to make provision for the making of special references by the Governor in Council to the Supreme Court.

(1) It shall be lawful for Her Majesty to refer to the Judicial Committee for hearing and consideration any question or matter to which this section relates, and the Judicial Committee may thereupon hear and consider the same and advise Her Majesty thereon.

(2) The questions and matters to which this section relates are questions or matters which, whether as part of any cause or otherwise, and whether in the course of any proceedings in any court in Queensland or otherwise, arise under or concern any law in force in Queensland (including the prerogatives of Her Majesty in right of Queensland) or which otherwise substantially relate to the peace, welfare and good government of Queensland.

4. References to Judicial Committee on Certificate of Court.

(1) The Attorney-General may at any time apply to the Court for an order granting a certificate that any question or matter specified by the Attorney-General is a question or matter to which this section relates, and is one which, by reason of its great general or public importance, or otherwise, ought to be referred to the Judicial Committee, under the provisions of this Act or of the Judicial Committee Act 1833 (3 & 4 William IV, c. 41) or of any other enactment or instrument enabling Her Majesty in that behalf, for hearing and consideration and advice thereon.

(2) The questions and matters to which this section relates are questions or matters which, whether as part of any cause or otherwise, and whether in the course of any proceedings in any court in Queensland or otherwise, arise under or concern any law in force in Queensland (including the prerogatives of Her Majesty in right of Queensland) or which otherwise substantially relate to the peace, welfare and good government of Queensland.

(3) On any application under subsection (1) the Court shall by order either grant the certificate, in the terms specified by the Attorney-General or with amendments, or refuse the grant of such a certificate.

(4) Where the Court by order refuses the grant of such a certificate or grants the certificate on amended terms, the Attorney-General may appeal to Her Majesty in Council against that order and, where the appeal is upheld, the Court shall make an order granting the certificate.

(b) grants the certificate on amended terms and the Attorney-General does not, within thirty days after the date of the order, petition Her Majesty in Council for leave to appeal against the order,

the Governor in Council shall request Her Majesty to refer the question or matter so certified to the Judicial Committee under the provisions of this Act or of the Judicial Committee Act 1833 (3 & 4 William IV, c. 41) or of any other enactment or instrument enabling Her Majesty in that behalf, for hearing and consideration and advice thereon.

(6) Nothing in this section shall affect any right of the Governor in Council or of any other person to tender any request or petition to Her Majesty at any time.

The scope of the Act is so wide that it embraces questions and matters within the judicial power of the Commonwealth. It extends to questions and matters within the jurisdiction conferred on the High Court by the Constitution, within jurisdiction vested in other federal courts created by the Parliament of Australia, and within federal jurisdiction of state courts.

Sections 3 and 4 of the Act are clearly incompatible with the Judicature Chapter of the Constitution and are therefore invalid.

These sections will not stand with the provisions of the Judicature Chapter which operate without legislation or the provisions under which the Parliament of Australia has legislated to create federal courts and to vest federal courts (including the High Court) and other courts with federal jurisdiction.

Thus, the Act will not stand with the provisions of s. 71 (regarding judicial power and investment with federal jurisdiction), s. 73 (the appellate jurisdiction of the High Court), s. 74 (the appeals to the Queen-in-Council), s. 75 (the original jurisdiction of the High Court), s. 76 (the additional jurisdiction of the High Court), s. 77 (legislative power to define jurisdiction) and s. 78 (legislative power to proceed against the Commonwealth or a state).

Queensland argued that as the Judicial Committee was not a court and the advice sought was not to be a judicial determination, there was no incompatibility between the Act and the Judicature Chapter. This was supported by a statement of Earl Loreburn L.C. in relation to the advisory opinions jurisdiction of the Canadian provinces that the opinions were: " only advisory and will have no more effect than the opinions of the law officers" Attorney-General (Ontario) v. Attorney-General (Canada) [47] .

However, the Judicial Committee later described itself as "an independent court of law" with only a nominal connexion with the Privy Council (Ibralebbe v. The Queen [48] ) and its modern role is that of a court (see Hull v. McKenna [49] and British Coal Corporation v. The King [50] ). Even if it were not strictly a court, the system of reference is potentially embarrassing to the courts of Australia and use of it would tend to undermine the judicial structures provided for in the Judicature Chapter.

1. [1964] A.C. 900, at p. 919. 2. [1926] I.R. 402. 3. [1935] A.C. 500.

The legal and constitutional history of Australia shows that continuance of appeals or references to the Privy Council has become less and less compatible with our developing constitution and laws made under it. The Australian framers of the Constitution failed to achieve the judicial framework for which the people of the Australian colonies had voted. The provision in s. 74 relating to the Privy Council was inserted at the insistence of the British authorities and was accepted by the representatives of the colonies in order to save the federation (see La Nauze, The Making of the Australian Constitution (1972), ch. 16).

Soon after the High Court was established, a struggle arose between it and the Privy Council. The issue was whether the Privy Council should decide inter se questions (which could reach the Privy Council from the Supreme Courts of the States) except when the High Court gave its certificate under s. 74 (see cases such as D'Emden v. Pedder [51] ; Deakin v. Webb [52] ; Webb v. Outtrim (Privy Council) [53] ; and Baxter v. Commissioners of Taxation (N.S.W.) [54] ; Flint v. Webb [55] ).

1. (1904) 1 C.L.R. 91. 2. (1904) 1 C.L.R. 585. 3. [1907] A.C. 81; (1906) 4 C.L.R. 356. 4. (1907) 4 C.L.R. 1087. 5. (1907) 4 C.L.R. 1187.

Parliament intervened in the struggle by inserting some complicated provisions in the Judiciary Act to prevent the Privy Council from dealing with inter se questions on appeal from State courts. The struggle was resolved in favour of the High Court. There was a practical necessity for the Judiciary Act amendments, but in my opinion, not a legal necessity. As the Privy Council said much later in 1961:

It has always been recognized that the general purpose of the agreement enacted in s. 74 is to reserve for the final decision of the High Court in Australia, unless the Court itself wishes to refer the matter to the Judicial Committee, "questions which arise in connexion with the federal distribution of power between the Commonwealth on the one hand and the States on the other" (Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p. 757). The clear intention of s. 74, as was said by Isaacs J. in Pirrie v. McFarlane [56] is that "on the purely Australian question of the distribution of the totality of governmental powers on this continent, the High Court of Australia - the highest judicial organ created by the Australian people - was to be the final arbiter, unless it voluntarily requested the intervention of the Sovereign in Council". (Dennis Hotels Pty. Ltd. v. Victoria [57] .) Although appeals to the Privy Council on inter se questions were still possible if the High Court gave its certificate under s. 74, only one certificate has ever been granted and that was in 1912 (Colonial Sugar Refinery v. The Commonwealth [58] ). Dixon J. said of the certificate provisions: The fact is that the basal purpose of s. 74 and of the principles upon which this court has proceeded has been to confine the final decision of the characteristically federal questions described by s. 74 to a jurisdiction exercised within the federal system by a court to which the problems and special conceptions of federalism must become very familiar Nelungaloo Pty. Ltd. v. Commonwealth [59] . 1. (1925) 36 C.L.R. 170. 2. [1962] A.C. 25, at pp. 50-51; (1961) 104 C.L.R. 621, at pp. 625-626. 3. (1912) 15 C.L.R. 182. 4. (1952) 85 C.L.R. 545, at p. 573.

The provision for a certificate is now a dead letter (see Whitehouse v. Queensland [60] ; Western Australia v. Hamersley Iron Pty. Ltd. [No. 2] [61] .)

1. (1961) 104 C.L.R. 635. 2. (1969) 120 C.L.R. 74.

It is a principle of constitutional interpretation that the Constitution is to be read in the light of broad constitutional developments and the changing relationships between Australia and other countries. This was referred to by Isaacs J. in The Commonwealth v. Kreglinger & Fernau Ltd. [62] :

We know, and all the world knows, and we cannot in interpreting modern constitutions of the Empire ignore, the tremendous advance in status of the Dominions within the Empire even before 1900. That is only another mode of expressing the advance of local responsible government. Constitutions made, not for a single occasion, but for the continued life and progress of the community may and, indeed, must be affected in their general meaning and effect by what Lord Watson in Cooper v. Stuart [63] calls "the silent operation of constitutional principles". "Responsible government," said Lord Haldane on an occasion referred to in the Engineers' Case [64] , is "the greatest institution which exists in the Empire, and pertains to every constitution established within the Empire." And it was to this constitution that Lord Haldane was specially directing his words. It is part of the fabric on which the written words of the Constitution are superimposed. Its influence upon the actual working of the letter of local constitutions has been the acceptance of a doctrine, amounting almost to a principle in itself, that the great self-governing Dominions are not any longer in tutelage but are constituent units of the British Commonwealth of Nations. The doctrine cannot be ignored in construing a recent written instrument of constitutional powers. It is now more than a high-sounding phrase or a statesman's aspiration. It is an acknowledged working thesis of the unwritten constitution of the Empire I cannot doubt that it is well within the power of the Australian Parliament, notwithstanding any existing Imperial legislation prior to the Constitution, when investing a State Supreme Court with federal jurisdiction so to limit that investiture as to direct the stream of judicial power at any given point into the High Court. Whatever subsequent course that stream may take depends in that case on ss. 73 and 74 of the Constitution and on any step by certificate or legislation which may follow by authority of those sections. In relation to the present matter the Australian Constitution is not subordinate to, but is pro tanto superior to, the earlier Act, the Judicial Committee Act, passed at an earlier stage of constitutional development. Later in the same year, the Imperial Conference (at which Australia was represented) presented a report containing the following: There is, however, one most important element in it which, from a strictly constitutional point of view, has now, as regards all vital matters, reached its full development - we refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. (My emphasis.) 1. (1926) 37 C.L.R. 393, at pp. 413-414. 2. (1889) 14 App. Cas. 286, at p. 293. 3. (1920) 28 C.L.R. 129, at p. 147.

This and other resolutions of the Imperial Conferences held in 1926 and 1930 were intended to be given effect by the Statute of Westminster in 1931.

For Australia, there is no longer an Imperial Parliament. The British Empire was replaced by the British Commonwealth, which in turn was replaced by the Commonwealth of Nations. World events including the wars, the formation of the United Nations Organization and the entry of Australia as an independent member, the entry of the United Kingdom into the European Economic Community have confirmed and emphasized the relationship which was described in the Imperial Conference from "a strictly constitutional point of view."

In 1968 the Parliament of Australia acted under s. 74 to limit appeals to the Privy Council by the Privy Council (Limitation of Appeals) Act 1968. The Act excluded appeals from federal courts and Supreme Courts of territories. Special leave to appeal from the High Court might be asked only if the decision of the High Court was on appeal from a decision of a State Supreme Court, not in the exercise of federal jurisdiction, and not involving the application of interpretation of the Constitution of federal laws or instruments.

In 1973 Governments of the States (including Queensland) presented petitions to the Queen requesting Her Majesty to refer a question to the Judicial Committee of the Privy Council. The question related to the rights to the seabed adjacent to the State of Queensland and sought, in effect, to have the issue of the respective rights of the Commonwealth of Australia and the State of Queensland to such adjacent seabed determined not in this Court but in the Judicial Committee. In these proceedings a letter written by the Governor-General to the Governor of Queensland was tendered. The letter stated that a message had been received from the Queen concerning the petition and continued -

Her Majesty the Queen of Australia has received and accepted the following advice of her Australian Ministers -

That the Petitions raise matters of concern only to Australia, namely, matters as to the extent and means of de-limiting Australian national boundaries and as to the respective rights of the National and State Governments to the seabed adjacent to the coast of Australia.

That the matter is one therefore on which Her Majesty should be advised as Queen of Australia by Her Majesty's Australian Ministers.

That the advice of Her Majesty's Australian Ministers is that the High Court of Australia is the appropriate tribunal to determine the issues raised in the Petitions.

That, indeed, the Petitions raise questions as to the limits inter se of the Constitutional power of the Australian Government and the Governments of the States concerned that, by reason of 74 of the Australian Constitution, are reserved for decision by the High Court of Australia, unless the High Court certifies that the question is one which ought to be determined by Her Majesty in Council.

That, moreover, the Seas and Submerged Lands Act 1973 of the Australian Parliament provides a basis for determination by the High Court of Australia of all the issues raised by the Petitions that the States of Queensland and Tasmania have addressed to Her Majesty.

And that accordingly Her Majesty's Australian Ministers advise Her Majesty not to refer the Petitions to the Judicial Committee of the Privy Council.

Her Majesty has accordingly informed me in Her message that the Petition of the Government of the state of Queensland will not be referred to the Judicial Committee of the Privy Council. Although it appears that the Queen also received similar advice from her United Kingdom Ministers, the letter of 30th January 1974 makes it clear that the Queen accepted and acted upon the advice of her Australian Ministers in her role as Queen of Australia regarding this petition. It would not be consistent with the constitutional integrity of Australia as an independent sovereign nation for United Kingdom ministers in future to tender advice to the Queen on Australian internal affairs.

In 1975, the Parliament of Australia, again under s. 74, enacted the Privy Council (Appeals from the High Court) Act 1975. This and the Privy Council (Limitation of Appeals) Act 1968 have ended all appeals to the Privy Council from the High Court and other federal courts except for cases already commenced in a court.

The constitutional developments referred to (including those enactments envisaged by the Constitution, particularly by s. 74) lead me to the conclusion that the continuance of appeals to the Privy Council from any court in Australia is no longer compatible with the Constitution of Australia and the laws made by the Parliament of Australia. (I leave aside the residual matters commenced in a court which were excepted in the Privy Council (Appeals from the High Court) Act 1975.) I am led to the same conclusion on references from any State on questions and matters of the kind referred to in the Queensland Act.

The intention of s. 74, although not spelt out in the Constitution, became clear in regard to inter se questions. As there was no appeal on such questions from the High Court to the Privy Council (without the certificate of the High Court), there could be no appeal to the Privy Council from any other court of Australia on such questions (see Dennis Hotels Pty. Ltd. v. Victoria [65] ).

Now that Parliament has exercised the power envisaged by s. 74 to exclude appeals from the High Court to the Privy Council on all other questions, the same implication of intention should be drawn, by parity of reasoning, that the Privy Council may not receive appeals on any questions from any other court in Australia.

The existence of two ultimate courts of appeal on any question would be not only incongruous but mischievous. Any difference of opinion between the Privy Council and the High Court on non-inter se questions would naturally be exploited by litigants.

The Queensland Act is unconstitutional on a much broader ground than incompatibility with the Judicature chapter. As counsel for Queensland argued, the fact that the references under the Act were to the Privy Council of the United Kingdom was not essential to the legislative competence of the Queensland Parliament. He contended that such references could be made to another body in any other country, for example, Nigeria.

This emphasizes the character of the Queensland Act which tends to be obscured by the eminence of the Privy Council and our familiarity with it. In truth, the Queensland Act is incompatible with the unity of the "one indissoluble Federal Commonwealth" which was established by the Commonwealth of Australia Constitution Act. The Constitution Act is the authority for the Constitution of Queensland and the powers of its Parliament (Constitution ss. 106, 107).

The establishment by an Australian State of a relationship with another country under which a governmental organ (judicial or otherwise) of that country is to advise the State on the questions and matters referred to in the Act, is quite inconsistent with the integrity of Australia as an independent sovereign nation in the world community. It is not within the legislative competence of the Parliament of any State to compromise or attempts to compromise Australian sovereignty and independence.