Canberra, 30 June 1966
Confidential
Appeals to the Privy Council
Over a period of years the question of abolishing appeals to the Privy Council has become the subject. of considerable professional, academic and other public interest. The question was raised in a concrete form last year at the third Commonwealth and Empire Law Conference in Sydney, where a proposal was put forward and sponsored vigorously by the Lord Chancellor on behalf of the British Government that member countries should set up a new Commonwealth Court of Appeal to replace the Privy Council. This concept found little support but it did excite post-Conference examination of the appropriateness of the Privy Council being the final court of appeal for Australia.
In the attached paper I discuss three possible courses of limiting appeals to the Privy Council from Australian Courts:
(1) To limit the area of appeal to the fullest extent possible without an amendment of the Constitution.
(2) To exclude appeals from the High Court in all constitutional, revenue and statutory interpretation cases.
(3) To exclude appeals from the High Court only in all constitutional cases.
I recommend adoption of the first course; if Cabinet does not favour that course, I recommend adoption of the second course.
Attachment
Over a period of years the question of abolishing appeals to the Privy Council has become the subject of considerable professional, academic and other public interest. Recently there has developed a growing expression of strong feeling in Australia that such appeals are an anachronism and are inconsistent with Australia’s status as an independent country. A growing national sentiment and the very high regard in which the High Court of Australia is held throughout the English-speaking world make the time ripe to consider whether steps should now be taken to abolish, or at least diminish, appeals to the Privy Council from Australian courts. If the Gallup Poll is to be believed, an overwhelming majority of Australians favour abolition of appeals to the Privy Council. Last year the Third Commonwealth and Empire Law Conference held in Sydney considered a proposal that the member countries of the Commonwealth of Nations should set up a new Commonwealth Court of Appeal to replace the Privy Council. This intensified discussion, both at the Conference and outside it, of the role of the Privy Council in relation to the present-day Commonwealth. The then President of the N.S.W. Bar Association, Mr. J.D. Holmes, Q.C., (now Mr. Justice Holmes), made a statement advocating abolition of appeals to the Privy Council. Shortly after, a motion was moved in the House of Representatives by the Deputy Leader of the Opposition to the same effect, but no vote was taken.
2. The arguments for retention of appeals to the Privy Council historically rest on the importance of the appeal as a bond of Empire. These arguments have little force today. It has been perfectly clear, at any rate since the Imperial Conference of 1926, that the United Kingdom Government regards each member of the Commonwealth as free to decide whether it wishes to discontinue appeals to the Privy Council. Excluding the United Kingdom, where the Privy Council is not a general appellate court, of 20 Commonwealth countries 8—Canada, India, Pakistan, Nigeria, Ghana, Cyprus, Tanzania and Kenya—have abolished the appeal. Those that retain it do so with differing limitations as to the right of appeal. These countries are Australia, New Zealand, Ceylon, Malaysia, Singapore, Gambia, Zambia, Sierra Leone, Malta, Jamaica, Trinidad and Tobago, Malawi and Uganda. Some of these, including Malaysia and Sierra Leone, are known to be proposing to terminate the appeals on the ground that such appeals are inconsistent with their national status. The smaller countries retain the appeal often only because they cannot, from within their own resources, provide a court of appeal of calibre comparable with the Privy Council. Australia is in quite a different situation. Our High Court is renowned as one of the great Courts enjoying a status equal to that of any other court in the English-speaking world. Its decisions have great persuasive influence in all countries with the common law tradition. That it should be subject to review by the Privy Council is an anachronism.
The Present Position
3. At present, appeals may be taken to the Privy Council from the High Court or from the Supreme Court of a State.
4. Appeals from the High Court to the Privy Council are governed by section 74 of the Constitution. This section–
(a) prohibits any appeal upon a question as to ‘the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the Constitutional powers of any two or more States’ unless the High Court certifies for any special reason that the question is one that ought to be determined by the Privy Council, in which case the appeal lies without the leave of the Privy Council;
(b) affirms the prerogative right of the Privy Council to grant special leave to appeal from the High Court in any other matter; and
(c) authorizes the Commonwealth Parliament to limit the matters in which the leave of the Privy Council may be sought—but requires proposed laws containing any such limitation to be reserved for Her Majesty’s pleasure.
It will be seen that the section distinguishes between what may briefly be described as ‘inter se’ matters and other matters.
The text of section 74 is annexed.
Inter Se Matters
5. The expression ‘inter se’ represents an attempt to define constitutional questions as to the line of demarcation between federal and State powers, which were recognized to be distinctively Australian affairs, and to make the High Court the final court of appeal in these particular constitutional questions unless, in any case, the High Court itself should give a certificate under the section. Of 13 reported applications to the High Court for certificates, only one has been granted. That case in 1912 was one in which the Court had been equally divided. The unsuccessful applications have included some of the most important cases in our constitutional history. The refusal of these applications makes it unlikely that the Court will ever give a certificate again. Effectively, therefore, there are no appeals to the Privy Council on ‘inter se’ matters.
Other Matters
6. These are matters of general law and constitutional matters that are not inter se matters. An appeal lies from the High Court only by special leave granted by the Privy Council. Special leave must be applied for at a separate hearing (this means a second hearing in London if leave is granted), and is not given except where the case is of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character. It is recorded that during the ten years from 1953 to 1962, inclusive, 22 applications for special leave were refused. During the same period, 26 appeals from the High Court reached the Privy Council pursuant to leave granted.
The following shows, under broad subject headings, the number of appeals from the High Court that reached the Privy Council during the 20 years from 1946 to 1965.
| Constitutional Cases | 10 |
|---|---|
| Revenue/Income Tax | 11 |
| Statutory interpretation | 8 |
| Commercial | 6 |
| Wills | 2 |
| Tort | 1 |
| Criminal | 1 |
| Miscellaneous | 3 |
| 42 |
8. In the latter half of this period, the number of cases that reached the Privy Council show a significant decline (I5 cases as against 27 in the first half).
9. It is in this area of ‘other matters’ that the Commonwealth has legislative power to limit the matters in which leave of the Privy Council may be sought. This legislative power cannot be used to abolish all appeals for it is subject to two qualifications, i.e.–
(1) appeals may go to the Privy Council direct from the State Supreme Courts;
(2) on a proper construction ‘to limit’ cannot be construed as ‘to abolish’.
Appeals from State Supreme Courts
10. Appeals to the Privy Council from Supreme Courts of the States are regulated by Orders in Council made under the nineteenth century Imperial Statutes relating to the jurisdiction and practice of the Judicial Committee of the Privy Council. Generally, appeals lie as of right if more than is involved and in the discretion of the Supreme Court in any case that, in the opinion of that Court, involves a question of great general or public importance. The High Court has held that the Orders in Council do not now apply in cases where the Supreme Court is exercising federal jurisdiction so that in, for example, constitutional cases, which can only be decided in federal jurisdiction, the only right of appeal is to the High Court. In cases decided in the exercise of the ordinary State jurisdiction of a State Supreme Court, however, an appellant has a choice between the Privy Council and the High Court.
The following shows, under broad subject headings, the number of appeals from State Supreme Courts dealt with by the Privy Council during the 20 years from I946–1965.
| Revenue/Income Tax (death duties, etc.) | 2 |
|---|---|
| Statutory interpretation | 7 |
| Commercial | 6 |
| Wills | 1 |
| Tort | 3 |
| Criminal | 1 |
| Miscellaneous | 4 |
| 24 |
Twenty-one of these appeals were from New South Wales and one each from Victoria, Western Australia and Queensland. If, therefore, the N.S.W. cases are put on one side, the appeal direct to the Privy Council from State Courts has largely fallen into disuse.
The Requirements for Abolition of Appeals
12. It is clear that it is not open to the Commonwealth either to abolish, or restrict, appeals to the Privy Council from the Supreme Courts of States in matters of purely State jurisdiction. If it was the States’ will to do so, it would, I think, need an Act of the United Kingdom Parliament; that Parliament would, undoubtedly, act only at the request of a State.
13. Turning now to appeals from the High Court, an amendment of the Constitution would be necessary to remove completely the possibility that the High Court would permit an appeal by granting a certificate in an inter se matter under section 74 of the Constitution. Also it would need a constitutional amendment to abolish the right of appeal in other matters under section 74, because that section authorizes the Commonwealth Parliament to limit the matters in which leave of the Privy Council to appeal may be asked. It does not give to Parliament the power to abolish all appeals.
14. To abolish all appeals to the Privy Council from both Federal and State Courts would, therefore, require an amendment of the Commonwealth Constitution and United Kingdom legislation. The latter would involve an approach to the States to seek their co-operation in initiating the necessary United Kingdom legislation.
15. I do not recommend a Constitutional amendment.
The Method of Limiting Appeals
16. If Cabinet agrees that an amendment of the Constitution is not presently desirable to abolish appeals from the High Court, there are three approaches to the question of limiting appeals from Australian Courts that would not involve any amendment of the Constitution. They are–
(1) To exclude as much of the whole area of appeal as is possible without such an amendment.
(2) To exclude a broad portion though not all matters.
(3) To exclude only constitutional matters.
First Approach
17. There are many ways of exercise of the power conferred by section 74 to limit the matters in which leave to appeal may be asked. Some of these would amount in practice to a virtual abolition of the appeal from the High Court. I consider it would be a valid exercise of the power to ‘limit’ the matters in which leave to appeal may be asked to, e.g., ‘matters arising under any treaty’ (the first class of matters in which original jurisdiction is conferred on the High Court by section 75 of the Constitution). So to limit the matters could attract criticism that it was a device to get around the Constitution. How powerful such criticism would be depends I think upon the manner in which the decision was announced. Assuming it occurred, the reply would be to point out that it is an exercise of Constitutional power authorized by the Constitution and consistent with modern thinking. I am confident that the concept of abolition would be supported by all political parties, the public, the press and the legal profession. This criticism then would go to the fact of it being not complete and avoiding a direct testing of the will of the people. It might not be extreme. Of course, a complete answer to such criticism would be an announcement that the legislation was to be followed at a subsequent date by a referendum to establish the High Court as the final Court of Appeal in all matters arising in Australia.
18. This approach would be best complemented by inviting the States, for their part, to seek abolition of the appeal to the Privy Council from State Courts in matters of State jurisdiction. Such a request to the States would have more chance of success if the Commonwealth had shown by its own actions that it was prepared to go as far as it could to abolish appeals from the High Court.
Second Approach
19. The table on page 4 shows a total of 42 appeals (as distinct from applications for special leave to appeal) dealt with by the Privy Council from 1946 to 1965. The break-up of matters shows, in part:
| Constitutional Cases | 10 |
|---|---|
| Revenue/Income Tax | 11 |
| Statutory interpretation | 8 |
These matters (involving 29 of the 42 cases) could be excluded.
20. There are very strong reasons why Constitutional cases should be finally decided by a Court of Judges living in a Federal system. Revenue/Income Tax cases likewise have a special content specifically relevant to individual countries imposing the tax. The construction of Commonwealth Statutes is a field of obvious final decision by the High Court. It is highly unlikely that a United Kingdom statute will be identical with an Australian Statute and there will in consequence be less familiarity with it in the Privy Council than the High Court. This is, of course, equally true of State Statutes. It is open to the Commonwealth Parliament to exclude all appeals from the High Court to the Privy Council in all three matters including matters arising out of the construction of State Statutes. The last mentioned could conceivably have the effect of encouraging appellants to go direct to the Privy Council from the State Supreme Court instead of to the High Court in matters involving State Statutes (it would not be possible to do so in the other matters). I expect this would not occur more frequently than it now does because an important matter that must be kept in mind in considering the question of appeals to the Privy Council is the cost factor. For private litigants, this can be a crippling burden.
21. I recognize that there will be some difficulty in defining precisely the area of the exclusion so far as concerns those cases that are broadly categorized above as Revenue/Income Tax and Statutory interpretation. But if Cabinet considers the second approach as being, in principle, the best course, I suggest that the task of refining this area might be left to me.
Third Approach
22. The third approach involves the Commonwealth legislating to exclude all matters arising under the Constitution or involving its interpretation (other than inter se matters for which special provision is already made). Only 10 of the 42 appeals over the years 1946 to 1965 were in this category.
23. It would be open to the Parliament to achieve the exclusion in either of two ways. The first is by excluding such constitutional cases absolutely. The second is by excluding them unless the High Court gave a certificate as is now required in relation to inter se questions. Adoption of either way would mean that appeals to the Privy Council would be in practice in all constitutional cases. Sir Robert Menzies in the debate in September, 1965 favoured going this far. He did not commit himself or his government against going further or even to doing this.
24. It is worth recalling that the special provision in section 74 that applies to inter se matters but not to other constitutional matters was the result of a compromise between British concern, in 1900, for imperial interests and the Australian view that only those who live under a federal constitution can become adequately qualified to interpret and apply its provisions. The inter se formula represented the attempt of the British law officers to entrust to the High Court virtually the final decision in questions as to the line of demarcation between federal and State powers which were recognised to be distinctively Australian affairs, but not general questions arising under the Constitution which could have a bearing on the status of Australia in relation to the United Kingdom.
25. The reason for the distinction between inter se questions and other constitutional questions has disappeared. The considerations of imperial policy to which it was necessary to defer in .1900 no longer exist. If it is right that the High Court should be the final arbiter of inter se constitutional questions, it is also right that it should be the final arbiter of other constitutional questions. The number of constitutional cases decided by the Privy Council has not been great; indeed, only eleven such cases (including one ‘inter se’ case) have gone to the Privy Council from the High Court. But I need not stress the importance of these cases from the point of view of Australian constitutional law.
26. The very form of the final sentence of section 74 manifests a recognition by the framers of the Constitution that with passage of time and changed circumstances the Commonwealth Parliament might wish to limit the range of appeals which may be prosecuted in the Privy Council—a legislative power not yet at all exercised but the time for which must have surely arisen.
27. I firmly believe that the time has come when we ought to establish the position of the High Court as the final court of appeal in Australia to the exclusion of the Privy Council. I believe that the Australian people would firmly support this action.
28. I have suggested three alternatives:
The first is to limit the area of appeal to the fullest extent possible without an amendment of the Constitution.
The second is to exclude all constitutional, revenue and statutory interpretation matters.
The third is to exclude only all constitutional matters (either absolutely or unless the High Court gives a certificate.)
29. I favour complete abolition of appeals to the Privy Council, and recommend the first alternative, believing it would attract a very broad based support and approval. Cabinet may think it better to approach the matter in two stages and to adopt either the second or third alternative as a first step. It would be comparatively easy to implement either of these alternatives and either should receive almost unanimous support. At least it would prepare the ground for the more substantial step of abolition to be taken in the future and could be used as the occasion to sound out the State views on complete abolition of the appeal. Of these two alternatives, I would favour the broader one of exclusion of constitutional, revenue and statutory interpretation matters from the area of appeal.
30. I would propose that any limitations on the right of appeal approved by Cabinet should not apply in relation to an appeal from a judgement pronounced in any proceedings that were commenced before the date on which the necessary legislation comes into operation. This would mean that there would still for a short time be the possibility of appeals to the Privy Council within the area of the limitations; but on the other hand, it would avoid the possibility of criticism that there was an interference with existing rights.
31. If Cabinet approves the first alternative, I recommend that I be authorized to prepare the necessary legislation and to make an announcement of this intention; and that the question of abolishing appeals from State Supreme Courts to the Privy Council be taken up on a Government to Government level.
32. If Cabinet approves the second or third alternative, I recommend that I be authorized to prepare the necessary legislation and to make an announcement of this intention.
Text of Section 74 of the Constitution
74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.
The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.
Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.
[NAA: A5619, C47]