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Published online by Cambridge University Press: 24 January 2025
The abolition of all appeals from the High Court to the Privy Council, coupled with the High Court’s recent statement that it no longer regards itself as bound by Privy Council decisions, highlights the fact that appeals still lie, in many matters of State jurisdiction, from State Supreme Courts direct to the Privy Council. In this article, Mr Gilbert is primarily concerned to examine the extent to which section 106 of the Commonwealth Constitution may provide protection for these “direct” appeals. To this end, Mr Gilbert examines what case-law exists on section 106, and attempts to place the section in perspective in relation to the rest of the Constitution. The difficult (and largely unexplored) relationship between section 106 and section 51 is considered, to discover the possible reaches of Commonwealth legislative power with respect to the subject-matter protected by section 106. The position of “direct” appeals within the States’ constitutional structures is looked at, in order to determine the possible ambit of whatever protection is offered by section 106, and finally, Mr Gilbert analyses the recent comments by Mr lustice Murphy that the abolition of Privy Council appeals from the High Court has meant the consequential demise of “direct” appeals from State courts.
1 John, St., “The High Court and the Privy Council; The New Epoch” (1976) 50 A.L.J. 389.Google Scholar
2 Ibid.; all justices of the High Court in Viro v. R. (1978) 18 A.L.R. 257; Murphy J.in Commonwealth v. Queensland (the Queen of Queensland Case) (1976) 50 A.L.J.R. 189, 203;and Blackshield, ; “Judges and the Court System” in Evans (ed.), Labor and the Constitution 1972-1975 (1977) 108-109.Google Scholar
3 Nettheim, , “The Power to Abolish Appeals to the Privy Council from Australian Courts” (1965) 39 A.L.J. 39, 44-48.Google Scholar
4 Bickovskii, , “No Deliberate Innovators: Mr Justice Murphy and the Australian Constitution” (1977) 8 F.L. Rev. 460, 466Google Scholar; Sawer, , “The British Connection” (1973) 47 A.L.J. 113, 115Google Scholar (although Sawer seems to change his mind on this issue: see id. 116).
5 St. John, op.cit. 397-398, n. 40.
6 op.cit.
7 E.g., in the Constitution Act 1867 (Qld), the Supreme Court, let alone the Privy Council, is hardly mentioned: ss. 15, 16, 17 and 38 deal merely with the tenure, salaries,and pensions payable to Supreme Court judges, while s. 33 merely confirms and continues the authority of colonial courts already established prior to 1867.The Privy Council is never mentioned.
8 Sawer, , “Australian Constitutional Law in Relation to International Relations”, in O'Connell (ed.), International Law in Australia (1966) 36.Google Scholar
9 Sawer, “The British Connection” op. cit. 113-114.
10 Lumb, and Ryan, , Constitution of the Commonwealth of Australia Annotated (2nd ed. 1977) 344-346Google Scholar. A minor point to note: it has been consistent Queensland practice to indicate when domestic State statutes are to be read as “constitutional” statutes; e.g. the Constitution (Legislative Assembly) Act 1933. This practice has clearly not been followed with the Appeals and Special Reference Act 1973 (Qld), s. 2 of which survived the High Court decision in Commonwealth v. Queensland (the Queen of Queensland Case) (1976) 50 A.L.J.R. 189, and which re-enacts locally Imperial provisions regulating direct appeals from Queensland.
11 (1918) 26 C.L.R. 9.
12 (1924) 35 C.L.R. 69.
13 (1918) 26 C.L.R. 9, 51-52.
14 (1924) 35 C.L.R. 69, 101-102.
15 Ibid. While Their Honours' views on State Constitutions are highly attractive, their interpretation of the Privy Council decision in Mccawley v.R. [1920] A.C. 691, is rather misleading: the Privy Council did not attempt a definition of “State Constitution”; it was concerned only with whether a State Constitution Act was “controlled” or “uncontrolled”. A similar criticism can be made of Their Honours' references, in the Limerick Case, supra n. 14, to the High Court decision in McCawley's Case, supra n. 11.
16 (1918) 26 C.L.R. 9, 28, 31.
17 Id. 82-83.
18 See Commonwealth v. Kreglinger and Fernau (1926) 37 C.L.R. 393, 426.
19 It should be noted that these various dicta by Isaacs, Rich, Barton, Powers and Higgins JJ., on what is meant by the expression “State Constitution”, were not made in the context of any particular discussion of s. 106–the comments are, however, no less useful as a guide to possible High Court thinking on the question.
20 [1920] A.C.691.
21 (1932) 47 C.L.R. 482.
22 Id. 491 (italics added).
23 [1935] A.C. 500.
24 [1964] A.C. 900.
25 (The Queen of Queensland Case) (1976) 50 A.L.J.R. 189.
26 Id. 193 (italics added).
27 Id. 202, 203. Murphy J. was however apparently prepared in Viro v. R., supra n. 2, to countenance something very much like the “intra-mural” view of the Privy Council's role inthe States' judicial systems, because, in characterising direct appeals as an aspect of State judicial power, direct appeals could then be contrasted with appeals to the High Court, the latter being an aspect of Federal judicial power. From this comparing and contrasting of the two types of appeals, one State, one Federal, Murphy J. suggested that the resulting question could be classified as an “inter se” matter, so that such matter (i.e. the continuance of two “ultimate” appellate tribunals–Privy Council and HighCourt) could be resolved only by the High Court under the terms of s. 74 of the Commonwealth Constitution: see (1978) 18 A.L.R. 257,317.
28 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (1920) 28 C.L.R. 129.
29 See Wragg v. New South Wales (1953) 88 C.L.R. 353, 386 per Dixon C.J.;and Grannall v. Marrickville Margarine Pty Ltd (1955) 93 C.L.R. 55, 77, 78, 79.
30 See e.g., R. v. Archdall (1928) 41 C.L.R. 128, 139, 140; Spratt v. Hermes (1966) 114 C.L.R. 226, 244.
31 Krygier v. Williams (1912) 15 C.L.R. 366; Adelaide Company of Jehovah's Witnesses v. Commonwealth (1943) 67 C.L.R. 116.
32 E.g., Davies and Jones v. Western Australia (1904) 2 C.L.R. 29; Henry v. Boehm (1973) 128 C.L.R. 482.
33 Sawer, (ed.), Cases on the Constitution of the Commonwealth of Australia (3rd ed. 1964) 344.Google Scholar
34 Supra nn. 3, 4 and accompanying text.
35 Supra n. 28. Isaacs J. makes this point concerning s. 106 and State legislative powers in Attorney-General for Queensland v. Attorney-General for the Common-wealth (1915) 20 C.L.R. 148, 172.
36 Italics added.
37 Quick and Garran, writing in 1901, appear to lend support to this view of the Founding Fathers' intention in this matter: see Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) 929-932.
38 Discussed previously, in Part II of this article.
39 Queensland v. Commonwealth (the Second Territory Senators Case) (1978) 16 A.L.R. 487, 496.
40 (1930) 44 C.L.R. 319.
41 (1932) 47 C.L.R. 482.
42 Supra n. 40, 353.
43 Ibid.
44 Id. 389 (italics added).
45 Id. 391-392.
46 Id. 392.
47 Id. 387.
48 Supra n. 28.
49 Supra n. 41.
50 Id. 491-492.
51 (1947) 74 C.L.R. 31.
52 See nn. 43, 44 and accompanying text.
53 St. John, op. cit. 397-398, n. 40.
54 (The Queen of Queensland Case) (1976) 50 A.L.J.R. 189, 202-203.
55 (1978) 18 A.L.R. 257,317.
56 Bickovskii, op. cit. 463-464; and Blackshield, op. cit. 107-109.
57 Viro v. R., (1978) 18 A.L.R. 257, 317 (italics added).
58 In conjunction, of course, with ss. 38A and 40A of the pre-1976 Judiciary Act.
59 Commonwealth v. Limerick Steamship Co. Ltd (1924) 35 C.L.R. 69; and Commonwealth v. Kreglinger and Fernan (1926) 37 C.L.R. 393. It should also not be entirely forgotten that High Courtdecisions such as Limerick and Kreglinger upholding Judiciary Act, s. 39(2) (a) on the basis of the legislative power in s. 77 of the Constitution, were motivated to a substantial extent by an understandable desire to circumvent the Privy Council decision in Webb v. Outrim [1907] A.C. St—understandable, because their Lordships had inconveniently held thats. 74 of the Constitution, because it did not mention the State Supreme Courts, conferred no power upon the Commonwealth to abolish direct appeals in Federal matters, let alone State matters: see [1907] A.C. at 91-92. Although the decision in Webb has been a dead letter in Australia for many years, it does no harm to keep in mind, when attempting to construes. 74, that the section does refer only to appeals from the High Court to the Privy Council.
60 (The Queen of Queensland Case) (1976) 50 A.L.J.R. 189.
61 Ibid.
62 (1978) 18 A.L.R. 257.
63 John, St., op. cit. 398, n. 40.Google Scholar
64 Viro v. R. (1978) 18 A.L.R. 257, 281-282 per Gibbs J.; 290 per Stephen J.;324, 325 per Aickin J.
65 Id. 295.
66 Id. 261. Since His Honour referred to the relationship of State courts to the decisions of the Privy Council, rather than the relationship of State courts to the Privy Council, per se, this writer would submit that theChief Justice was referring to a “radical change” in the status of Privy Council precedents vis-à-vis Australian State courts, and not a change to the continuation of direct appeals in non-Federal matters.
67 (1978) 18 A.L.R. 258,lines 11-13,
68 Id. 306.
69 Id. 306, 307.
70 (The Second Territory Senators Case) supra n. 39, 500.
71 (The Queen of Queensland Case) supra n. 54.
72 Supra n. 55.
73 (The Queen of Queensland Case) (1976) 50 A.L.J.R. 189.