Deakin v Webb [1904] HCA 57

Deakin v Webb [1904] HCA 57 - HCA 1904 case summary — Zoe

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of taxation, The imposition of the income tax for the year 1902 _ is authorized by Act No. 1758, which was passed after the Consti- - tution, so that the question whether the tax is or is not validated - by sec, 108 of the Constitution does not arise. Every presump- tion should be made against the application of the general words of the Income Tax Act 1895 to a class of officers of the Crown which was not then in existence. This Court has in D''Hmden v. Pedder, ante p. 91, held that the decisions of the United States Courts based on that in McCulloch v. Maryland, 4 Wheat., 316, are applicable to the Constitution. In Dobbins v. Hrie County, | 16 Peters, 435, it was held that it is not competent for a State to : tax the salary of a federal officer. In Collector v. Day, 11 Wall. 113, the same doctrine was applied to a Federal tax on the salary . of a State Judge. The question of whether the limits of the Con- - stitution have been transcended rests with this Court and with no other authority. Without dissent the principle has been established, affirmed and reaffirmed, that it is not competent for one government. to tax another. Taxing the income of a federal officer is an inter- ference with a federal instrumentality ; Dobbins v. Erie County (supra). Whatever device is adopted, if the object is to diminish the amount payable to the officer, the device fails. It may be argued _ that the prohibition in sec. 114 of the Constitution against a State taxing the property of the Commonwealth, is limited to property and does not extend to Commonwealth instrumentalities, but the - Court should not give as much weight to the eapressio wnius exclusio alterius argument in relation to the Constitution as in relation to ordinary Acts of Parliament; Legal Tender Cases, 1. Wall., 457, at 544. See also Leprohon v. City of Ottawa, Ontario App., 522. There is a certain similarity between a federal officer doing his work in a State, and an ambassad He is there not by the permission of the State but by virtue of higher authority. _

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_ As to the right to tax federal officers, see » also Ex parte Owen, 20 few Brunswick R., 487 ; R. v. Bowell, 4 British Columbia R., 498. sto the Bank of Toronto v. Lambe, 12 App. Cas., 575, on which Full Court relied so strongly, that was not a case of taxation of a federal instrumentality. The bank was a private bank, tho ih incorporated under federal law. As in the Municipal Cowneil of Sydney v. The Commonwealth, ante p. 208, it was held that a new kind of property had come into existence which was ot in the contemplation of the Parliament of New South Wales when passing the Sydney Corporation Act 1902, so here a new kind of person, viz., an officer of the Commonwealth, has come f existence, who was not in the contemplation of the Victorian liament when the Zncome Tax Act 1895 was passed, and, refore, he is not taxable under that Act. Whether this tax is evied under the Act of 1895 or that of 1902 it is subject to the onstitution. The Constitution was interpreted by this Court in 'Emden v. Pedder, ante p. 91, just as any other Imperial Act ld be interpreted. The cases of Dobbins v. Erie County, supra, at p. 443 ; Collector v. Day, supra; and Leprohon v. Ottawa, pra, at p. 525, and 40 Ontario Rep., Q.B., 478, were all expressed to be test cases, and the decisions were intended to apply to all ederal officers. The grant by the Constitution of express powers includes, by implication, the grant of powers without which the express powers would be useless. Hx parte Owen, supra, at p. The income of a federal officer is itself a federal instru- ntality, because it is the means by which the Commonwealth secures the services of the officer. The imposition of this tax is inconsistent with the Constitution in so far as it affects the emuneration of a minister, and of a member of parliament. The se for a member of parliament is much stronger than that for a minister, because of the language of sec. 48 of the Constitution. he tax,so far as it affects a minister, is an interference with the control of a department of the Commonwealth. Neither ministers 10r members of parliament are within the jurisdiction of a State. They also referred to National Bank v. Commonwealth, 9 Wall., 353, at p. 361.

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| | used to settle disputes between the Commonwealth and the States. Sec. 74 of the Constitution expressly provides to the contrary.] Many bills of the Dominion of Canada have not been assented. to. See Quick & Garran on the Constitution, p. 694. The right - of the Crown to disallow an Act must be regarded by this Court as an efficient power. The Crown would disallow an Act as between the Commonwealth and the States as it would in the - case of a New Zealand Act which interferes with Canada. Seo also Todd's Purliamentary Government in the Colonies, p. 527. It has been held that if there is a power granted by the Constitu- tion of a Province of Canada it does not matter if it conflicts with - a power of the Dominion; Attorney-General for Manitoba v. Manitoba Licence Holders' Association, (1902) A.C., 73, at p. 78. Similarly a Dominion Act is not bad because it conflicts with the powers of a Proyince ; Russell v. The Queen, 7 App. Cas., 829. In Brewers' and Maltsters' Association of Ontario v. Attorney- General for Ontario (1897), A.C., 231, at p. 237, it was said that if a provincial legislature were under the guise of direct taxation toseek to impose indirect taxation, the legislation might be invalid, but in this case there is no attempt under the guise of a State tax to cut down federal salaries or to affect federal operations, The effect may be the same qud the man, but it is not the same qué the Federal Government. There is no "direct impediment" placed in the way of the federal officer | see Railroad Co. v. Peniston, 18 Wall., 5, at p. 35. The taxation of a government agent is invalid only when it is the government that is attacked. Central Pacific Railroad Oo, v. California, 162 U.S.R., 91, at p. 121. (They also referred to Owensboro' National Bank vy. Owensboro', 173 US.R., 664; Davis vy. Elmira Savings Bank, 161 USR. 283.] The true test, however, of the validity of a State Act is st 107 of the Constitution. The grant of the Constitutions of the Commonwealth and of the States is based on confidence that the powers will not be abused. [They also referred to Loan Associa~ tion v. Topeka, 70 Wall., 655; Lefroy's Legislative Power im Canada, pp. xlxi., 198, 671; Providence Bank vy. Billings, Peters., 514, at p. 561; Clements on Canadian Constitution, pp. 174, 222; Glossop v. Howard, 10 Q.B., at p. 457; R. v. Mayor of London, 3 B. & A., 270.) In Canada the division of power i

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the United Kingdom. We are quite unable to see the relevaney of this distinction. It is a matter of common knowledge that the - framers of the Australian Constitution were familiar with the two _ great examples of English speaking federations, and deliberately | adopted, with regard to the distribution of powers, the model of ; the United States, in preference to that of the Canadian Dominion. They used language not verbally identical, but synonymous, for the purpose of detining that distribution. And a the respective powers of the Commonwealth and the States having ; been defined and distributed by the ultimate sovereign power, it appears to be quite irrelevant to the question of interpretation whether that sovereign power is one or several, or whether it is the collective people or a personal monarch or a constitutional parliament. The scheme of the Canadian Constitution, which was rejected by the framers of this Constitution, is essentially - different. An attempt was made in the British North America - Act, by which the powers of the Dominion and the Provinces are conferred, to enumerate all possible subjects of legislation, and to distribute them between the Dominion and the Provinces, giving the power in each case to the one authority to the exclusion of the other. It follows that every power of legislation must reside in one authority or the other, and if it cannot be exercised by the authority on whom it is conferred in express terms, it cannot be exercised at all. Whether the doctrine of McCulloch v. Maryland (supra) is applicable to the exercise of an express power of legis- lation apparently conferred on a Province, but repugnant to the general scheme of the instrument (the British North America Act) from which the implied restriction is sought to be inferred, - isa question which has not yet come before the Judicial Com- mittee for decision, but in the Provincial Courts it has long been held that the doctrine is applicable to such a case (Leprohon v. Ottawa, 2 Ontario App. Cas., 522; Lx parte Owen, 20 New Br. R., 487; R. v. Bowell, 4 Brit. Col. R., 498.) In the later case of Brewers and Maltsters Association of Ontario v. Attorney- General for Ontario, 1897 A.C., 231, however, the Judicial | Committee intimated that they would approach the consideration : of such a question with an open mind. | The case of Bank of Toronto v. Lambe (supra) did not raise any |

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e power of the Dominion are " banking, incorporation of banks d the making of paper money ;" and amongst the matters within the exclusive power of the Provinces is "direct taxation within e Province in order to the raising of a revenue for Provincial purposes" (sec. 92 (2)). The Bank of Toronto was a bank incorporated by Dominion law. The question was whether a tax imposed under a law of the Province of Quebec was within the power of the Provincial legislature. The Act in question, which s entitled "an Act to impose certain direct taxes on certain commercial corporations," enacted that "every bank carrying on business of banking in this Province" and a number of other specified companies should annually pay the several taxes thereby imposed upon them. In the case of a bank the tax imposed raried with the paid-up capital, with an additional sum for each office or place of business. The question was whether the law osing the tax was valid under the power to impose " direct axation within the Province." It was objected that the tax was n indirect tax ; that it was not imposed within the limits of the Province, inasmuch as, although the bank carried on part of its business in the Province of Quebee, its principal place of business in the Province of Ontario, where its principal capital, which he basis for estimating the tax, was kept; that the Provincial islature could only tax that which exists by their authority or introduced by their permission ; and that if the power to tax h banks existed they might be crushed out of existence by it, ind so the power of the Dominion Parliament to create them might be nullified. The case of McCulloch v. Maryland (supra), s cited, apparently in support of the two last stated objections. The Judicial Committee first addressed themselves to the question ether the tax was a direct tax within the meaning of the sh North America Act, and came to the conclusion that it They next determined that the tax was taxation within Province. Sec. 92 (2), they thought, did not require that the sons to be taxed should be domiciled or even resident within he Province. It was sufficient if the persons were found within he Province provided that they were taxed directly. The bank s found to be carrying on business there, and on that ground

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the bank or its profits, but the legislature had adopted its own measure of taxation by reference to facts which could be verified without doubt or delay. Their Lordships then inquired whether there was anything in see. 91, by which the legislative powers of the Dominion are defined, which would operate to restrict the meaning so assigned to sec. 92 (2), and found nothing. They thought that the power to make banks contribute to the public objects of the Provinces where they carry on business did not interfere at all with the power of making laws on the subject of banking or with the power of incorporating banks. But they said nothing to suggest that if there were such an inter- ference the Provincial law would be valid. So far there is nothing in the opinion expressed by their Lordships to affect the doctrine of McCulloch v. Maryland. With regard to the objection that the power, if existent, might be used so as to crush a bank out of existence, and so nullify the power of the Dominion Parliament to create banks, they observed that people who are trusted with the great power of making laws for property and civil rights may well be trusted to levy taxes; and added that " whatever power falls within the meaning of classes 2 and 9 is, in their Lordships' judgment, what the Imperial Parliament intended to give; and to place a limit on it because the power may be used unwisely, as all powers may, would be an error, and would lead to insuperable difficulties in the construction of the Federation Act." The foun- dation of this argument is, obviously, the fact that the power in question was conferred by the express words of the Statute. It _ is, indeed, self-evident that when a power is conferred in express terms the possibility of its abuse affords no argument against its - existence. But when an alleged power is not expressly conferred, - but the question of the existence of the power or the limits of its exercise is a matter of inference and of implication depending upon a consideration of the whole of an instrument dealing with - the relations of the several parts of a federated State, the possi- bility that the power, if existent or unlimited, might be exercised to the destruction or the impairment of the efficiency of the agencies of the general government, is very relevant in considering whether, upon the proper construction of the whole instrument,

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Their Lordships then dealt with the last objection, and with the rguments based on McCulloch v. Maryland (supra), and said (12 \pp. Cas., at p. 587) - - * Their Lordships have been invited to take very wide range on this part of the case, and to apply to the struction of the Federation Act the principles laid down for e United States by Chief. Justice Marshall. Everyone would sladly accept the guidance of that great Judge in a parallel case. he was dealing with the Constitution of the United States. Inder that Constitution, as their Lordships understand, each State make laws for itself, uncontrolled by the federal power, and ibject only to the limits placed by law on the range of subjects vithin its jurisdiction. In such a Constitution Chief Justice Marshall found one of those limits at the point at which the ction of the State legislature came into conflict with the power ested in Congress. The appellant invokes that principle to support the conclusion that the Federation Act must be so con- ed as to allow no power to the provincial legislatures under . 92, which may by possibility, and if exercised in some iravagant way, interfere with the objects of the Dominion in ercising their powers under see. 91. It is quite impossible to gue from one case to the other. Their Lordships have to con- true the express words of an Act of Parliament which makes an laborate distribution of the whole field of legislative authority hetween two legislative bodies, and at the same time provides for the federated Provinces a carefully balanced constitution, under whieh no one of the parts can pass laws for itself except under e control of the whole acting through the Governor-General. nd the question they have to answer is whether the one body or the other has power to make a given law. If they find that on the due construction of the Act a legislative power falls within 92, it would be quite wrong of them to deny its existence use by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion Parlia- nent."

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case to the other. But it is equally impossible to argue from sees. 91 and 92 of the Dominion Constitution to the Constitution of the Australian Commonwealth. In the case of the British North America Act the function of the judiciary is "to construe the express words of an Act of Parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative bodies," in one or the other of which, but never in both, every legislative power is vested. In the construction of such an Act, to deny the power to the legislature in which it is expressly and exclusively vested would be, as already said, to deny altogether the existence of the power. This, however, does not determine whether Chief Justice Marshall's doctrine is, or is not, applicable to an attempt by a Provincial legislature, under the form of direct taxation, or otherwise, to interfere with a Dominion agency or instrumentality. No such question arose in the bank case. The doctrine of McCulloch v. Maryland (supra) has never been extended in the United States so far as to cover such a case as the taxation of the Bank of Toronto, in the manner effected by the Quebec Act. Some confusion has arisen from a misconception of the reference in the judgment to the fact that under the Canadian Constitution "no one of the parts can pass laws for itself except under control of the whole acting through the Governor-General." It may, perhaps, be argued, when the time comes to argue it, that a Provincial law which interferes with the operations of the Dominion Government is not lightly to be held invalid merely for that reason, having regard to the fact that it has received the assent of that Government, which may, therefore, be said to have offered no objection to the interference ; just as it was said that laws interfering with the royal prerogative were valid on the ground that the Crown, by assenting to them, waived - the prerogative pro tanto. But, as already said, no such question - arose in the case before their Lordships in the view which they took of the operation of the Quebee Statute. And no such ques- | tion can arise under the Australian Constitution, under which the Commonwealth Government has no control over the laws of the States. There is no analogy between the control of the Dominion Government, acting through the Governor-General, over Provincial legislation, and the power of disallowance reserved

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property. And the ordinary use of language follows this principle. We talk of land tax, income tax, customs duties on imports, excise duties on manufactures, succession duties, In each case the substance of the matter is the exaction of a fixed sum from the taxpayer, computed according to the value or quantity of the thing in respect of which the tax is payable. Nor can it make any difference in substance whether, in the case of an income tax, the tax is deducted "at the source" - to use a term applied under the English system - or collected from the tax- payer after the receipt of the income. In either case the effect, if any, of the imposition as a diminution of the net emoluments of the taxpayer is identical. The matter may be illustrated by considering a case in which the reduction of a salary is expressly _ prohibited. By the Constitution the salary of the Governor- General may not be altered during the continuance of office. If the Federal Parliament were to attempt to impose an income tax of, say, two shillings in the pound with respect to the Governor- General's salary, the result would be that the effective salary would be reduced by ten per cent. whether the tax were deducted before payment of the salary or demanded and collected after- wards. This is the accepted view in the United States (see Mr. Justice Miller's Lectures on the Constitution of the United States, pp. 247-8). This would be a case in which the payment and the deduction are made by the same hands. Or suppose the case of an employer who makes a levy upon his employés against .their will, of a sum equal to a fixed percentage of their wages. Whether the levy is deducted from each payment, or is adjusted - periodically as a matter of account, it would be in plain violation of a law which forbade any deduction from the salary. If, how- ever, the levy is not made by the same Government that makes the payment, although it is not a diminution in exactly the same { sense, the effect upon the recipient of the income is the same. His effective salary is diminished. The question in that ease is - whether the authority which makes the diminution has power to H do so so.: If it has no such power, it cannot effect the same | purpose by the use of another form of words. The corollary of - the maxim quando lex aliquid alicui concedit, concedit et id sine

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United States, to carry into effect its powers to SYA and collect taxes, duties, imposts, &., and to regulate commerce." x "But we have said that the ground upon which we have just own the unconstitutionality of the tax in the case before us, is not the sole ground upon which our conclusion can be maintained. We vill now state another ground ; and we do so, because it is applic- ble to exempt the salaries of all officers of the United States from axation by the States. The powers of the national government ean only be executed by officers whose services must be compen- sated by Congress. The allowance is in its discretion. The presumption is that the compensation given by it is no more than the services are worth, and only such in amount as will secure m the officer the diligent performance of his duties. The officers execute their offices for the publie good. This implies their right of reaping from thence the recompense the services hey may render may deserve ; without that recompense being in any way lessened, except by the sovereign power from whom the officer derives his appointment, or by another sovereign power to whom the first has delegated the right of taxation over all the objects of taxation, in common with itself, for the benefit of both. And no diminution in the recompense of an officer is just and lawful, unless it be prospective, or by way of taxation by the sovereignty who has a power to impose it, and which is intended to bear equally upon all according to their estate. The com- pensation of an officer of the United States is fixed by a law 'made by Congress. It is in its exclusive discretion to determine what shall be given. It exercises the discretion and fixes the amount, and confers upon the officer the right to receive it when it has been earned. Does not a tax, then, by a State upon the office, diminishing the recompense, conflict with the law of the United States, which secures it to the officer in its entireness ? Tt certainly has such an etfect, and any law of a State imposing uch a tax cannot be constitutional, because it conflicts with a law of Congress made in pursuance of the Constitution, and which makes it the supreme law of the land."

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ject only to the limits placed by law on the range of subjects - within its jurisdiction. In such a Constitution, Chief Justice Marshall found one of those limits at the point at which the action of the State Legislature came into conflict with the powers vested in Congress." | The only part of those observations which is applicable to the - present case are the words: "Everyone would gladly accept the guidance of that great Judge in a parallel case." How does the _ Constitution of the Australian Commonwealth correspond with - that of the United States in this particular? They are identical. - The framers of the Australian Constitution deliberately rejected the scheme of the Canadian Constitution, and deliberately accepted _ that of the United States Constitution; and we are told by the Privy Council that in a parallel case - and this is as parallel as" its framers could make it - they would gladly accept the guidance of that great Judge. If, then, that Constitution has been inter-_ preted by that Court for 80 years in a particular way, and the Privy Council tell us that in a parallel case they would accept the guidance of Chief Justice Marshall, and then this Constitution : is, admittedly, based exactly on the same lines, is it suggested that 4 this Court is not competent to say that the principle so laid down - should be accepted as the guiding principle of the Australian - Commonwealth ? I should feel myself totally unworthy of the position I occupy if I were to give a certificate to that effect. | The second question is whether the Victorian income tax imposed on the salaries of federal officers is an infringement of that rule. Reasons were given in the judgment, which I am not going to repeat - reasons which are obvious to everyone who has" had practical experience in administering such a tax - which seem to make the answer to that question self-evident. Upon that question we have the satisfaction of knowing that we merely affirmed a proposition the contrary of which has been denied by every competent authority except the Court now appealed from. We know that 60 years ago the Supreme Court of the United States held that such an income tax was an interference with federal instrumentalities ; that 25 years ago the Canadian Courts, under a different Constitution, came to the same conclusion. We

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the words "public interests." It was from the first conceded, on e one hand, that those who had made this Constitution, were itled to have it, if possible, adopted with the assistance of Her jesty's Government, and of the Imperial Parliament, in so far as there was nothing in it which constituted a danger, or might pro- voke a difficulty with respect to general Imperial interests. On the other hand, it was rightly asserted that the Imperial Government ind Parliament stood in the position of trustees of the Empire, and anting 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 y 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 eases 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 pre- it 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 s to substitute a provision embodying a due regard to those principles which had been asserted on each side, and conceded turn by the contending representatives or governments. And so when this provision was drawn and accepted, while I do not say that in its form it would be held, or necessarily held, by the ourt to exclude other special reasons, the term "special reasons " was devised so that, at least, those Australian constitutional cases, which involved the public interests of parts of the Empire external to this Commonwealth, might be ultimately decided by His Majesty in Council upon the grant of its certificate by this Court. Still the rm "any special reason" has not been defined in the Constitu- 'ion, and I am quite sensible of the danger of endeavouring to lay down any hard and fast rule as to cases such as this Court may

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_ So the thing foreseen was that there would be such controversies, and expressions of public opinion, and therefore such an occurrence annot be considered a "special reason," otherwise there is hardly any controversy, between Commonwealth and State, or between te and State, which would not afford a special reason, and the main provision would be rendered almost nugatory. A number of grounds have been given by the able counsel who argued this matter. I have disposed in what I have said the grounds that the case involves matter of great im- portance, with reference to revenue and State control. All t is of a nature to be expected by those who have to dis- harge duties such as we have to perform. The fact that the ates desire the appeal is a matter which this Court cannot ook at, unless it desires to abrogate its own functions. The question is not whether the certificate is desired, but whether it can operly be allowed. That it affects a large number of public vants is a matter which will be common to many decisions of his Court on constitutional questions. I do not think Iought to ay a word upon the ground that this Court did not agree with e State Supreme Court. There would be some loss of dignity either Court were to touch that at all. I pass to the reason that decision is in conflict with that of the Privy Council in Bank of Toronto v. Lambe (supra). It is impossible for this Court to accept it as a reason, because, having thoroughly examined that case, 'it finds no reason whatever for thinking that there is a conflict between that decision and its own in the cases just determined, nd it finds no reason whatever to apply the circumstances of that ease to this, because two cases more distinguishable could not ise. Ihave been through all the reasons, and taking them lectively or separately, they amount to no more than might given in ordinary cases. The "special reasons" are not that f reasons, but something beyond them must be disclosed to ntitle the Court to lay down its responsibilities, and ask somebody to take them up. I cannot say that any special reason has

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O'Connor, J. Lagree with the judgments just delivered. In my opinion no ground whatever has been shown for granting the certificate asked for in this case. I do not think it necessary to refer to the historical aspect of the matter, because it appears to me we must interpret the Constitution by the same rules as would guide us in the interpretation of any other Statute, that is to say, we must take as our guide the ordinary meaning of the plain words of the Statute. It is only if we fail to adduce reasonable meaning from them that we can have resort to the history of the clause or the circumstances surrounding the framing of the Constitution. This section seems to me to place a duty upon this Court in the plainest possible language, and that duty is to see that this Court is the final arbiter of all ques- tions arising out of the Constitution, where the rights of State and State, or State and Commonwealth are concerned, unless we think for some special reason that the Privy Council, and not this Court, should be the final arbiter of the dispute. I shall deal with only one of the reasons suggested, and that is that the public opinion of Australia, as it has been called, wishes this Court to grant the certificate in order that the Privy Council may determine this question. I hold so strongly the opinion that upon this Court alone is placed the responsibility of determining the cases in which a certificate ought or ought not to be granted, that if not only the Premiers of the different States, but also the Parliament of each State, and the Parliament of the Common- wealth, all concurred in expressing the opinion that we ought to send the case to the Privy Council, and we in our own consciences believed that we ought not to do so, then we would disregard our duty if we swerved one hair's breadth from our own opinion on the matter. It was urged upon us that in this matter the views of the State Premiers embodied the will of the Australian | people. There is only one way in which the Court can know the will of the Australian people, and that is as it is contained in this instrument under which we sit to interpret the laws of the Com- monwealth. Until that will as so expressed is altered by an amendment of the Constitution, we can have no regard to any other expression of the will of the people. The will of the people

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we the responsibility of determining the cases under sec. 74 which ought to be finally decided by us, and the cases which wht to be decided finally by the Privy Council. In that sense we have been made, not only the interpreters, but the guardians f the Constitution. That is to say, the duty has been placed upon us, not only to see that we interpret the Constitution according to our best judgment, but to take care, also, that, except under very exceptional circumstances, we do not allow the interpretation to fall into any other hands. So strongly do I feel that that duty has been cast on myself as a member of this Court, that I have 0 hesitation in saying, if we found that by a current of authority England, it was likely that, should a case go to the Privy Council, some fundamental principle involved was likely to be decided in a manner contrary to the true intent of the Constitu- tion as we believed it to be,it would be our duty not to allow the case to go the Privy Council, and thus to save this Constitution from the risk of what we would consider a misinterpretation of its fundamental principles. Holding these views, I am very strongly of opinion that no grounds whatever have been shown in this case for a certificate. It is impossible, and undesirable, if it were possible, to lay down any rule for the exercise of this power to issue a certificate. In the course of years many questions may arise in which this Court may have to consider whether, in the interests of the Constitution itself, a case should be remitted to the Privy Council for final determination. When those cases arise, this Court, however constituted, will, I have no doubt, pro- 'nounce its opinion to the best of its judgment. All I can now say is that that case has not arisen here, and I sincerely trust that it will never be supposed that upon grounds anything like those put forward in this case we should be asked to exercise the power of depriving ourselves of the right of being the final arbiters in disputes between State and Commonwealth, or between State

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