Kirmani v Captain Cook Cruises Pty Ltd; Green

High Court of Australia|1985-07-01|Before: Dawson JJ, Barton J, Kitto J, Gibbs J

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan, Deane and Dawson JJ. Kirmani v Captain Cook Cruises Pty Ltd; Green (Third Party) [No 2] [1985] HCA 27

ORDER Application refused. Order that the Attorney-General for Queensland pay the costs of the plaintiff.

The Court delivered the following written judgment: -

This Court's power to grant a certificate under s. 74 of the Constitution is the vestigial remnant of the hierarchical connexion which formerly existed between Australian courts exercising federal jurisdiction and the Privy Council.

From the beginning it was recognized that the provisions of s. 74 which prevented an appeal to the Privy Council on inter se questions were "designed, in the first place, to safeguard the right of the people who had framed it, and had voted upon it, to interpret it, and to bring to an end conflicts between Commonwealth and States, by the decision of the Court which that Constitution was calling into existence ": Deakin v. Webb [1] , per Barton J. And, as Kitto J. later observed in Western Australia v. Hamersley Iron Pty. Ltd. [No. 2] [2] : "The terms of the section and the nature of the questions to which it applies, relating as they do to the inter-relation of the organs of government within the Australian federation, were enough to ensure from the beginning that a proper case for the High Court to transfer to the Privy Council the task of final elucidation could seldom if ever arise."

(1904) 1 C.L.R. 585, at p. 628. 2. (1969) 120 C.L.R. 74, at p. 84.

Only once has this Court granted a certificate, and that was seventy-three years ago in Colonial Sugar Refining Co. v. The Commonwealth [3] . The fundamental reason which has led the Court to refuse applications over the years was succinctly stated in the judgment of the Court delivered by Dixon C.J. in Whitehouse v. Queensland [4] . Dixon C.J. [5] said that the principle which lies at the root of the section is "that experience shows - and that experience was anticipated when s. 74 was enacted - that it is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions".

(1912) 15 C.L.R. 182. 2. (1961) 104 C.L.R. 635. 3. (1961) 104 C.L.R., at pp. 637-638.

In accordance with that approach this Court has rigorously insisted on maintaining its ultimate constitutional responsibility to decide conflicts between the Commonwealth and the States without the intervention of Her Majesty in Council. The last occasion on which an application was made, and made unsuccessfully, was in Hamersley. At that time the Privy Council (Limitation of Appeals) Act 1968 Cth had been enacted. With the subsequent enactment of the Privy Council (Appeals from the High Court) Act 1975 Cth the hierarchical relationship between this Court and the Judicial Committee has effectively disappeared (Caltex Oil (Australia) Pty. Ltd. X.L. Petroleum (N.S.W) Pty. Ltd. (1984) 155 C.L.R. 72, at pp. 79-80 [6] ; notwithstanding what Gibbs C.J., Mason, Wilson and Dawson JJ. in Attorney-General v. Finch [No. 2] [7] described as the "theoretical possibility" of an appeal upon a s. 74 certificate. It is impossible to suppose that this Court should by granting a s. 74 certificate itself revive that relationship in abdication of its responsibility to decide finally questions as to the limits of Commonwealth and State powers, questions having a peculiarly Australian character and being of fundamental concern to the Australian people (cf. per Gibbs J. in The Commonwealth v. Queensland [8] ).

(1984) 155 C.L.R. 72, at pp. 79-80. 2. (1984) 155 C.L.R. 107, at p. 113. 3. (1975) 134 C.L.R. 298, at pp. 314-315.

Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected - to say nothing of national sentiment - have made the jurisdiction obsolete. Indeed an exercise of the jurisdiction now would involve this Court in passing the responsibility for final decision to the Privy Council in that class of constitutional case which the Constitution marked out above all others as the class of case which should be reserved for the final decision of this Court - and this at a time when, as a result of the legislative changes already referred to, no other constitutional cases can be taken to the Privy Council.

The circumstances that a question is of great importance and that opinions are divided upon it provide no reason for granting a certificate. One of the questions involved in this case - the scope of the external affairs power - is a peculiarly Australian one. Another question - the effect of the Statute of Westminster - may, as Mr. Davies clearly pointed out, have a wider significance. But that provides no reason for us to abdicate our duty finally to decide its effect on the constitutional law of Australia. The certificate must be refused.

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