Flint v Webb [1907] HCA 77

High Court of Australia|1907-07-01|Before: O'Connor J, Isaacs J, Per Higgins J

H.C. or A, Appeal to Privy Council - Decision as to limits inter se of constitutional po 1907. Commonwealth and State - Certificate of High Court - '* Special reasons" ~ Constitution (63 & 64 Viet. c. 12), sec. 74. . 3

Mexpournr, May 21, 22, The fact that a decision of the Privy Council, on a question of law as t 23, 245 the limits inter se of the constitutional powers of the Commonwealth and

Baer, States, is contrary to a previous decision of the High Court as to Griffith 0.J., certificate under sec. 74 of the Constitution has been asked and refused, | Oto: not to be of itself a sufficient special reason for granting a certificate

another decision of the High Court following its previous decision.

The inconvenience caused by the existence of those contrary decisions not to be a sufficient reason.

Per Griffith C.J., O'Connor J. and Isaacs J. - That inconvenience removed by the Commonwealth Parliament exercising its powers 77 (u1.) of the Constitution,

Per Griffith C.J. - That inconvenience can also be removed by the Comm wealth Parliament making its grants to its servants nibject ota States to tax them,

Per Higgins J. - Quere, whether, if a State income tax on federal servants is invalid under the Constitution, the Commonwealth liament can validate such a tax.

On the complaint of Thomas Prout Webb, Commissioner of H- ©: oF A.

Taxes of Victoria, an order was made against Arthur Loftus Flint, for the payment of £2 ds. 3d., for income tax for the year 1904, with 14s. interest thereon, and £2 2s. costs. It appeared that Flint was an officer in the Department of the Postmaster- General of Victoria employed as a telegraph operator, and he therefore put in a special defence that he was a public servant in the employ of the Commonwealth of Australia, and was not within the jurisdiction of the State of Victoria for taxation purposes so far as the tax sued for was concerned.

Flint, by special leave, obtained on 19th April 1907, now appealed to the High Court.

Mitchell K.C. (with him Joseph), for the appellant. There is nothing in the reasoning of the Privy Council in Webb v. Outtrim (1) which affects the reasoning of this Court in Deakin v. Webb (2) and D'Emden v. Pedder (3). The intention is clearly indicated in sec, 74 of the Constitution, that in matters there mentioned the High Court is to be the final arbiter - that the decision of the High Court should be final and conclusive in the sense that there should be no appeal to the King in Council by the exercise of the prerogative except in cases where the High Court gave its certificate. The difficulty which it is suggested may arise from conflicting decisions of the Privy Council and of the High Court may be prevented by legislation by the Parliament of the Com- monwealth under see. 77 (11.) of the Constitution. The object of sec. 74 is, not to put an end to a particular piece of litigation, but to secure an authoritative decision of the High Court upon certain matters of purely Australian concern, Finality is given by sec. 74 to a decision of the High Court on a "question," and not to a judgment of the High Court. That is to say, if in a particular matter coming before the High Court, that Court decides a ques- tion as to the limits inter se of the Commonwealth and a State, an appeal may be brought to the Privy Council from the judgment of the High Court, but on that appeal the decision of the High Court as to that question may not be challenged unless the High

(1) (1907) A.C., 81; 4 C.L.R., 356. (2) 1C.L.R., 585, (3) 1C.L.R., 9).

: Court has given its certificate. An appeal lies in this case to t High Court under sec. 39 of the Judiciary Act 1903. The Co of Petty Sessions was exercising federal jurisdiction, for this w a matter involving the interpretation of the Constitution with the meaning of sec. 76 of the Constitution and see. 30 of th Judiciary Act 1903. J

[Irvine K.C. - It is not disputed that this case involves th interpretation of the Constitution. ]

(Counsel referred to Safford and Wheeler's Privy Coune Practice, p. 548; Healey v. Bank of New South Wales (No, (1); Read v. Bishop of Lincoln (2).]

Irvine K.C. and Pigott (Harrison Moore with them), for he respondent. 'The appeal is not competent. If the Court of Pett Sessions was not exercising federal jurisdiction no appeal lay t the Queen in Council at the inception of the Commonwealt within the meaning of sec. 73 (11) of the Constitution, and there- fore no appeal lies to this Court. See, however, Parkin v. Jame (3). If the Court of Petty Sessions were exercising federal jurisdiction, the appeal would lie to this Court under see, 73 (ii) of the Constitution. Federal jurisdiction must be conferred upo a Court either by the Constitution or by Commonwealth legislati The mere fact that a Court is dealing with a matter inyolvin the interpretation of the Constitution does not constitute federal jurisdiction. See. 39 of the Judiciary Act 1903, which pur- ports to invest State Courts with federal jurisdiction, is wltr vires. Sub-sec. (2) (a) of sec. 39 attempts to take away the right of appeal to the Privy Council, and is therefore invalid, and the rest of the section is so inextricably mixed up 'with sub-see. (2 (a) that the whole section must fall. Cooley's Constitutional Limitations, 6th ed., pp. 210, 212 (n); Ah Yick vy. Lehmert A Roberts v. Ahern (5).

{Isaacs J. referred to Colonial Laws Validity Act 1865, sec. 2

This Court is bound to accept the law as laid down by the Council in all matters, including those referred to in sec. 74 of the Constitution, using the word "bound" in the sense that

(1) 24V.L.R., 694; 20 A.L.T., 200, (4) 2C.L.R., 593, at p. 602.

(2) (1893) A.G., 644, at p. 654. (5) 1C.L.R,, 408, at p. 417. (3) 20.L.R., 315, a p. 331.

Court is bound to give its decisions according to law, and the law H. ©. or 4. must be capable of determination. There must be a Court which ee ultimately can declare what the law is: Quick and Garran's - Fusr Australian Constitution, p. 758. There cannot be two conflicting wry. laws as to the same facts operating over the same area. If the appellant's view were correct, the Privy Council might place a certain interpretation on a section of the Constitution in a matter properly coming before it, and to which sec. 74 did not relate ; in another matter which was within sec. 74, the High Court might place an opposite construction on the same section of the Constitution. Then, if that section came before the High Court for construction in a matter not within sec. 74, the High Court would be bound to follow the previous decision of the Privy Council. So that there might be two opposite constructions by the High Court of the same section of the Constitution, one binding in cases within sec. 74, and the other binding in cases not within see. 74. There is no doubt that the Privy Council is a Court of appeal with regard to the High Court, and therefore the High Court is bound by the decisions of the Privy Council although in a particular class of cases the right of appeal is taken away. Similar provisions taking away the right of appeal are found in many Acts, but the decision of the superior Court has always been held to be binding on the inferior Court.

(Hicerns J. referred to Trimble v. Hill (1); "The City of Chester" (2).

Isaacs J. - The reason for taking away the right of appeal in those cases was to prevent frivolous appeals. That is not the object in this case. See Lane v. Esdaile (3); Ex parte Steven- son (4). He also referred to London Tramways Co. Ltd. v. Lon- don County Cowneil (5); Leask v. Scott (6); North British Railway Co. v. Wauchope (7).]

In interpreting sec. 74 of the Constitution the Court is entitled to look at the history of the section. That does not entitle the Court to look at the various forms in which the bill appeared before it came up for consideration in the Imperial Parliament.

Cas., 342, (5) (1898) A.C., 375, at p. 379. at p. 207. (6) 2Q.B.D., 376.

210, at p. 212. (7) 4 Macq. H.L. Cas., 352.

At most it entitles the Court to look at the different forms wl the bill assumed in its passage through the Imperial Parliam 'The same rules of interpretation should be applied to the tution as to any other Act of Parliament. Hardcastle on Stat tory Law, 4th ed., pp. 121, 465; Green v. The Queen (1).

Isaacs J. referred to Herron v. Rathmines and Rath Improvement Commissioners (3); Caledonian Railway Co, Greenock and Wemyss Bay Railway Co. (4); Inglis v. B (5).]

The word "decision" in sec. 74 of the Constitution means thi judgment - the actual order affecting the parties. If it decision upon a point of law arising in a particular ease, th a judgment of the High Court were based partly on a determin tion of a question of law as to the limits inter se, and partly on determination as to something else, there might be an appeal the Privy Council from the judgment, but on that appeal i Privy Council could not interfere with the determination of th High Court as to the question of law, Sec. 74 prevents an appe and, as no appeal could be brought to the Privy Council determination of a question of law but only from a judgment, the appeal which is prevented is an appeal from a judgment. Aq tion of the limits inter se of the powers of the Commonwealthan a State means nothing more than a question as to the distribution of those powers - a question whether a certain power is by the Commonwealth or by the State. The only case in wh such a question can arise in regard to legislative powers is wl the power granted to the Commonwealth is exclusive of that the States, that is, where the legislative powers of the Commo wealth and of the States are mutually exclusive, It is not question of a conflict of powers but of the limits of por There must be a field in which the Commonwealth can legis and a field in which the States can legislate, and the q must be what are the limits of those fields. The question of th limits inter se is not one of a conflict of powers because that is

(1) 1 App. Cas., 513. (4) L.R. 2 H.L, Se., 347, at (2) 5 Ch. D., 901, at p. 905. (5) 3 App. Cas., 552, at p. 576. (3) (1892) A.C , 498, at p. 501. -

provided for by sec. 109 of the Constitution. The Income Tax 4. ©. or A.

Acts may give rise to a question of conflict of powers, but not to a question of the limits inter se. This Court is not the final arbiter as to whether this is a question of the limits inter se.

The doctrine of implied prohibitions is not applicable to the Constitution. The necessity for it is to a very great extent remoyed by see. 109, the object of which was to avoid a clashing of authorities. Assuming that the principle of non-interference with Commonwealth instrumentalities applies to the fullest ex- tent to which it has been applied in the United States, the facts in the present case do not bring it within that principle. It cannot be asserted that the services of a telegraph operator are affected in any way by the imposition of an income tax which simply makes him take his burden as an ordinary citizen of Victoria, and which is proportioned to his ability to earn income. The question whether a particular Act is within the principle must in every case turn on a question of fact, even if the view in Deakin v. Webb (1) is right. That is borne out in the American decisions: Railroad Co. v. Peniston (2); Hibernia Savings and Loan Society v. San Francisco (3); Murray v. Charleston (4).

(Grirrira C.J. referred to Crandall v. State of Nevada (5).

Barton J. referred to Dobbins v. Commissioners of Erie County (6).

Isaacs J. referred to Central Pacific Railroad Co. v. California (7); Hibernia Savings and Loan Society v. San Francisco (8) ; Brewers and Malsters' Association of Ontario vy. Attorney- General for Ontario (9).]

(Counsel also referred to Sir Frederick Pollock's Essays in Jurisprudence and Ethics, p. 329; Dicey's English Law and Opinion in the 19th Century, p. 364; Six F. Pollock's First Book of Jurisprudence, 1st ed., p. 323; Trial of Earl Russell (10); Encyclopadia of Laws of England, tit." Appeal" ; Bankruptey Act 1883 (46 & 47 Viet. ¢. 52), see. 104; Agricultural Holdings Act 1900 (63 & 64 Viet. c. 50); Jones v. Mersey Docks Trustees

(2) 18 Wall, 5. (7) 162 U.S., 91. (8) 200 U.S., 310. (8) 96 Amer. St. Rep., 100. (4) 96 U.S., 432, at p. 445. (9) (1897) A.C., 231, at p. 237.

H.C. oF A. (1); Castle on Rating, 4th ed. p. 501; R. v. Corporw

Mitchell K.C. in reply. An appeal lies to this Court in t] case either under sec. 73 (11.) of the Constitution or under see, 3 of the Judiciary Act 1903. The Court of Petty Sessions w exercising federal jurisdiction, which sec. 77 (11) of the Consti- tution recognizes a Court of a State may have without invested with it, because it was dealing with one of the m included in sees. 75 and 76 of the Constitution, and an a therefore lies under sec. 73 (11). If the Court of Petty Sessions was exercising State jurisdiction, then it was a Court from whieh an appeal lay to the King in Council, and again an appeal would |i to this Court under see. 73 (11.) of the Constitution. Apart from this, an appeal lies under sec. 39 of the Judiciary Act 1903. N part of that section is ultra vires, and, even if that part whieh i said to purport to take away the right of appeal to the Council were ultra vires, the rest of the section will stan Colonial Laws Validity Act 1865, sec. 2. In interpretin; Constitution the Court may look at the State Acts dealing v the proposed Constitution and at the Schedules to those Acts con- taining that Constitution. The object of looking at them is to that there were negotiations and what was the subject matter 6 those negotiations. The word " decision " in sec. 74 of the tution means a decision upon a point of law, and it is thus in London Tramways Co. v. London Cownty Council (3). decision, if embodied in a judgment of the High Court, contain other matters decided by the Court. As to these oth matters there might be an appeal to the Privy Council from t judgment without a certificate of the High Court, but as tot decision on the point of law there could be no such appe without a certificate. Sec. 74 is not ambiguous, the language | most appropriate for securing that the High Court shall be th final arbiter as to certain constitutional questions. The Court is also the final arbiter as to whether a particular questi is one within sec. 74, The doctrine enunciated in M'Culloch

(1) 11 HLL.C., 443. (2) L.R. 3Q.B., 474. (3) (1898) A.C., 375.

Maryland (1), has not been modified by later decisions in the H.C. or A.

United States. In South Carolina v. United States (2), all the earlier cases dealing with that doctrine were referred to with

approval. He also referred to Stevenson v. James (3); Leask v. Scott (4).

For the reasons given in Baater v. Commissioners of Taxation 1°?

An application was now made for a certificate of the Hig! Court under sec. 74 of the Constitution.

Irvine K.C, The questions as to which a certificate is asked are : - (1) Whether the principle laid down in M'Culloch v. Mary- land (1) applies to the Australian Constitution? (2) Whether the Victorian Income Tax Acts in so far as they apply to Com- monwealth officers are an infringement of that principle? (8) Whether the Victorian income tax, being collected after the salaries are paid, is an interference with federal instrumentalities ? (4) Whether the Victorian Income Tax Acts, so far as they assume to tax the salaries of federal officers, are a valid and enforceable exercise of State legislative power? The main ground for asking for the certificate is that without it it is impossible within the Constitution to obtain a final and uniform settlement of the law on these points. As strengthening that ground there is the fact that not only is the judgment of this Court opposed to judgments of the Victorian Judges, but there is a marked differ- ence of opinions between the Judges of this Court. Under the Constitution the granting of a certificate is the only mode of putting an end to an intolerable position, viz, the existence of two interpretations of the Constitution differing vitally and fundamentally from one another.

The only other methods of putting an end to that position are by an amendment of the Constitution or by the exercise by the

Imperial Parliament of its paramount power of legislation.

(1) 4 Wheat., 316. (4) 2Q.B.D., 376, at p. 380. (2) 199 U.S., 437, at p. 464, (5) 4 CLR; 1087. (8) 15 V.LR., 711; 11 A.L.T., 109,

H.C.or A. [Isaacs J. - The federal Parliament could put an end a position by enacting that in cases within sec. 74 the juri Fuxr of the High Court should be exclusive of that of the State Cour Wie: That would not be of any effect unless the State Courts w

deprived of jurisdiction in all cases in which a plea of a que of the limits inter se was raised by either party.

No stronger case for a certificate can be conceived than The fact that another part of the Empire may be affected cam now be a ground for asking for a certificate, for no other pa the Empire can be affected by a decision on a question of la to the limits inter se. If the Court had held that the "decision" in sec. 74 meant judgment in a particular case, 0 parts of the Empire might have been affected by a judgment, ant that might then have been a ground for asking for a cer

GrirritH C.J. In my opinion the motion made for a cate in this case should be refused. The reasons for coming that conclusion are apparent in the judgment I delivered yest day from this Bench, and I will not occupy time by referring them again. I will only say a word with reference to the argu- ment used by Mr. Irvine as to what he called the "intolerab position" existing because of there being conflicting judgm of this Court and the Privy Council on the same subject. Id¢ not think the position is intolerable. I do not think that is th correct epithet. It may be called an inconvenient position. B whatever it is called, he says the strong reason why a certifi should be granted is that there is no other way of escape fro that position. If it were true that there is no way of escape fro that position unless we give a certificate, still, in the publ interest and for the future welfare of the Commonwealth, I thi it would be better that the position should continue, ho inconvenient, than that escape should be made from it in th manner.

But it is not correct to say that there is no other way of escape. There are two ways of escape, quite easy and both oper One is the exercise by the federal Parliament of its pow

under sec. 77 (11.) of the Constitution, which can be done in various ways. One way would be by making the appellate jurisdiction of this Court exclusive of the appellate jurisdiction of the State Supreme Courts in some or all of the matters which together are called federal jurisdiction, They may exercise that power in full or limit it to any class of those matters. The other way in which the inconvenience can be remedied is one which was pointed out in the judgment of the majority of this Court delivered yesterday. The federal Parliament can, if it pleases, make its grants to its servants subject to the right of the States to tax them. As was then pointed out quilibet potest renunciare juri pro se introducto. This argument, which is the only novel one in addition to those used in Deakin v. Webb (1), therefore fails, and I think the certificate should be refused.

Barron J. On a similar application in the ease of Deakin v. Webb (1) I joined in the unanimous opinion of the Court as then constituted that no certificate should in that case be granted. In concurring in the judgment of the Court in the present case I have nothing to add to what I then said except that I cannot see in what way the reasons then advanced in support of the appli- cation, and which seemed to the Court to be insufficient, have been strengthened, and I think nothing has happened in the meantime to strengthen them, but rather that they have been weakened. Therefore I think the certificate should be refused.

O'Connor J. Tam of the same opinion, Circumstances might arise which would make it right in the public interests that the final interpretation of the Constitution on some question involving the constitutional powers inter se of the Commonwealth and a State or of State and State should be left to the Privy Council. When those circumstances arise they will be considered. They have not arisen in this case. The question which has been argued so long and so strenuously before us is merely a question of what are the limits of the constitutional powers of the Commonwealth and the States under their respective Constitutions in a matter which concerns only the people of Australia. Mr. Irvine has

urged that the fact that there is a conflict as to the in er] tation of the same constitutional document between the P Council and this Court is a cireumstance which ought to with us in determining that the question involved ought to decided by the Privy Council. That conflict arises from condition of the law, and it is for the legislature, and not for { Court, to bring it to an end. All possibility of conflict cou be removed by the legislature if the Parliament of the Comm wealth exercised its rights under the Constitution, as hasa been suggested during the argument, but I can give no counte to the doctrine that it should be determined by sending case to the Privy Council in order that an interpretation mi be put upon the Constitution, which I believe to be cont to its spirit and to its letter, and which would render the workin out of the daily relations of State and Commonwealth under provisions impossible. To take the course suggested would b to depart from the duty which the Constitution has placed up this Court. In determining a similar application in Deakin Webb (1) I said : - * The will of the people as represented in thi Constitution is that we, and we alone, shall have the responsibilit of determining the cases under sec. 74 which ought to be finall decided by us, and the cases which ought to be decided finally! the Privy Council. In that sense we have been made, not onl the interpreters, but the guardians of the Constitution. That i to say, the duty has been placed upon us, not only to see that we interpret the Constitution according to our best judgment, but take care, also, that, except under very exceptional circums we do not allow the interpretation to fall into any other hand So strongly do I feel that that duty has been cast on myself a member of this Court, that I have no hesitation in saying, if found that by a current of authority in England, it was lik that, should a case go to the Privy Council, some fundam principle involved was likely to be decided in a manner cont to the true intent of the Constitution as we believed it to would be our duty not to allow the case to go to the Council, and thus to save this Constitution from the risk what we would consider a misinterpretation of its fundament

principles." What has happened since has to my mind strength- ened that view. The decision of the Privy Council in Webb v. Outtrim (1) has made it clear that the interpretation placed upon the Constitution in that case would be placed upon it in this, for we must assume that that case had as full and careful con- sideration at the hands of the Privy Council as any other case coming from Australian Courts would have. Under these cir- cumstances I think it to be the clear duty of this Court to say that the question involved ought not to be determined by the Privy Council, particularly now we know that the Privy Council is likely to interpret the Constitution in respect of the matter

". under consideration in a way which the majority of this Court

has decided to be wrong in principle. For these reasons in my judgment the application must be refused.

Isaacs J. For the purpose of this application it is, of course, admitted that the decision, whatever it may be, against which it is desired to appeal is a decision upon a question as to the limits inter se of the constitutional powers of the Commonwealth and the State of Victoria.

'That is the basis on which the application is made, and therefore the precise form of stating the question is immaterial. The actual decision was in fact of that nature because the question was whether the Victorian Income Taw Act is, so far as it applies to the salaries of federal publie servants, in conflict with Common- wealth power, or, in other words, as to the limits inter se of the constitutional power of the State of Victoria to pass such an Act affecting those salaries, and the constitutional power of the Com- monwealth in respect of its public servants and their salaries, as being or affecting the means of carrying on the operations of government.

The special reason alleged here is that there is a decision of the Privy Council opposed to that of this Court ; and it is alleged that there arises thereby what is termed an " intolerable position."

In order to properly arrive at the proper judgment to be given on this question, because it is really a judicial question to be determined on both the law and the facts of the situation as they

H.C. oF A. present themselves to us, it is necessary to recall one or

siderations already dealt with in our judgments of yeste Thave already held in entire concurrence with three of learned colleagues, in addition to our view on the 39th se the Judiciary Act, and the inclusion of this case in the cl pointed to by sec. 74, that on such a question the Privy O is not, and cannot be regarded as an appellate tribunal from Court unless and until the certificate is given such as is ' asked for. I pointed out that this class of question was, by a constitutia provision that finds no parallel, severed from all others and st jected to exceptional judicial treatment. It follows that Y decisions of the High Court are thus, in the absence of a ¢ cate, severed from the jurisdiction of the Privy Council, jurisdiction of the Privy Council is equally severed from then Those who maintain that the Privy Council is still to beloo upon as of appellate authority in regard to such decisions a called upon to give some intelligible meaning to sec. 74 consis with their arguments. So far, none has been given, repeatedly asked for, and I take it that as none has been 0 in the course of two elaborate arguments lasting over a forti none can be fashioned that will stand the test of reason. This is important with regard to the present applical because it must not be assumed that the same considerations an to be applied by this Court in granting a certificate as are down for itself by the Privy Council in granting special le appeal.

alone? What effect is given to that eloquent cireums| nee those who still maintain that the Privy Council must sti looked upon as the Court of Appeal on these matters? tribunal could as well judge of the general importance of th question as this Court, the facts would speak as strongly to the

as to us with regard to the amount involved or as to the sub- H.C. or A.

stantial character of the dispute, and it could form an equally valuable opinion as to how far it touches purely Imperial interests. The importance of the question cannot constitute a special reason, because every such question is of immense import- ance as affecting for all time the relative power of the respective legislatures of the communities concerned.

Tf, then, the previously universal rule of allowing appeals to the Privy Council by leave of that body, given either by itself or its delegates, was reversed, some great reason must have impelled the change. As the Imperial Parliament deprived the Privy Council of this power, and conferred it upon an Australian Court - a power not merely to permit but practically to compel the Privy Council to entertain the cause, because, being statutory, leave, once the certificate is granted, that tribunal cannot revoke or rescind it - what does that point to? It must be because Australian con- siderations were to have a weighty, perhaps a dominant, force in guiding the judgment of the Court in acceding to or refusing the application.

How then should Australian interests, which certainly are to have some consideration, be regarded? 'Turn to the Constitution for guidance. By that instrument a national Government was constructed - legislative, executive and judicial.

A special federal Court was insisted on. State Courts might or might not be utilised. In the construction of the Constitution these powers of adjudication might, at the will and discretion of the national Parliament, be excluded wholly or in part.

But the national tribunal was placed in the position of inalien- able right and corresponding duty to determine these matters.

I pointed out yesterday that the Imperial Parliament indicated by the Constitution itself that it expected - perhaps I should have said hoped - that there would be uniformity of decision, but it made provision within the four corners of the Constitution in case a difference arose. That provision is that the federal Parliament, viewing the situation as a Parliament is entitled to view it - in addition to making a just deduction from federal officers' salaries - has also authority, if 'in its wisdom and dis- cretion it thought right, to end the divergence by exercising the

H.C. or A. power of total or partial exclusion of State Courts fro

interpretation of the Constitution, and leave the funetion interpreting the national Constitution to the Supreme Australi Court.

But - because of a difference of opinion that has arisen bety the national Court in the exercise of federal jurisdiction which it was specially created, and the Courts under the sup vision of the Privy Council which was in these matters expre cut off from the national Court unless a certificate were given it would be a total reversal of all the federal principles em! in the Constitution if this national tribunal were to abdicate it special functions and practically repeal the 74th section } virtually, if not in form, taking a course which amounts to im printing for all time upon this Constitution a meaning which Court considers wrong, and which would, under present ci cu stances, be a foregone conclusion.

Hicers J. As to this application Iam happy to be able tocon- cur with my colleagues, and without hesitation; but, inasmuch as have differed from them on the main question, I should like to plain my position. This power to refuse a certificate for appeal | 0 the King in Council we undoubtedly have. It is a privilege, my view, the only privilege, which the High Court has as) constitutional points. But it is a responsibility also; and I thi that we should be guilty of a breach of duty if we were to pa on to another tribunal a question within the ambit of sec. 74 the Constitution without good cause shown. It has to be for the purpose of this application, that the question is one ¥ the ambit of sec. 74. This assumption may be right, or may wrong; but except on such an assumption, there is no g for making this application. I cannot find any good cause in this case. Sec. 74 seems to indicate that the question of gi a certificate should turn on the character of the question. instance, if extra-Australian rights were incidentally invo or, perhaps, if there were signs of dangerous disturbance States, or between a State and Commonwealth, such as the d of the High Court would not allay, it would probably be certify " that the question is one which ought to be determi

His Majesty in Council." But I agree with my colleagues that, where it is a matter of purely Australian concern, such as the payment by federal officers of State income tax, we should not, without very exceptional reasons, pass on the responsibility to the Privy Council. This question - as to the duty of federal officers to pay income tax - is the question, and the only question, under see. 74, or as to which a certificate is now required. The higher question, as to the duty of this Court to follow the decision of the King in Council, as being the decision of the ultimate exponent of law for the Empire, does not come within the ambit of sec. 74; and counsel for the Commissioner of taxation, accepting for the present purposes the ruling of the majority of this Court as to the meaning of sec. 74, asks for the certificate only as to the question of liability to income tax, not as to the question of the relations of the High Court towards the King in Council. The fact that I happen to differ from my colleagues on both points is not, in my opinion, a sufficient reason for giving my voice in favour of a certificate to the effect stated in sec. 74, as to the question of liability to income tax.

However, I must say that I agree with Mr. Irvine that the position is intolerable and pregnant with mischief. But this argument, that the position is intolerable, is an argument in favour of following the decision of the Privy- Council, as the appellate Court, and the final Court of all the Colonies, rather than an argument for giving a certificate on this question under sec. 74, That decision of the Privy Council will stand on the records of the Privy Council, that the income tax is payable ; and, whatever may happen, it is pretty certain that the Privy Council will not overrule its decision upon the mere ground that the High Court has given a contrary decision. The question may arise not only on appeal from a Supreme Court, but also, as I have said during the argument, in a number of ways incidentally in English and other Courts; and any English Court that happens to deal with the question will treat the Privy Council as having the final power to declare the law for Australia upon all questions on which it has declared that law. It is said that the federal Parlia- ment can exercise its power under sec. 77 (11.), so as to deprive all the State Courts of all federal appellate jurisdiction. I do not

think that we are entitled to reckon on the Parliament any such extreme step - a step which would deprive the Co wealth of the assistance of the very eflicient State Courts, lead to the raising of sham federal issues in order to delay de in the State Courts, would cause delay and expense to suito would saddle the Commonwealth with many new federal Co and functionaries. But even if the federal Parliament this suggestion, it could not reverse the decision, which will of the King in Council.

As to the other suggestion, that the federal Parliament 1 make its grants of salary subject to the rights of the State tax them,I merely refer to it, because I do not at present Y to be committed to any definitive view on the subject. At p I cannot see how, if an income tax upon the salary of a fi servant is made invalid by the Constitution, the federal Pa ment can alter the Constitution by making the income tax p able. However, I do not wish to make any final pronouncem on the suggestion, which, as far as my memory serves , not been mentioned before in this Court.

Solicitors, for appellant, Strongman & Crouch, Melbourne. Solicitor, for respondent, Guinness, State Crown Solicitor. -

At a glance

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Judgment (85 paragraphs)