SUBMISSION NO. 285 BOWEN TO CABINET

Canberra, May 1967

Confidential

Appeals to the Privy Council

In July last year Cabinet considered a Submission of my predecessor in which the question of abolition or restriction of appeals to the Privy Council was canvassed.1 In that Submission, my predecessor discussed a number of possible courses of limiting appeals. His own recommendation was that the area of appeals should be limited to the fullest extent possible without an amendment of the Constitution. If Cabinet did not approve that course, he recommended that appeals from the High Court should be excluded in all constitutional, revenue and statutory interpretation cases.

2. I have, in this Submission, adopted a good deal of what was said in my predecessor’s Submission. I have, however, made some modifications in the cases that he put forward for consideration.

3. I recognize that there are arguments that might be put forward for the retention of appeals to the Privy Council. I set out the main arguments and my reasons for not being convinced by them in Annexure ‘A’.

4. I believe that the time has come when we ought to take steps towards establishing the High Court as the final Court of Appeal from Australian courts, to the exclusion of the Privy Council, and in this Submission I recommend that a considerable step in that direction—and one that can be taken simply by an Act of the Commonwealth Parliament—should now be taken, namely, the abolition of appeals from the High Court in all matters of federal jurisdiction, other than inter se matters.

5. In considering the question of abolition of appeals to the Privy Council, cases have to be divided into three groups, namely:

(a) Cases in which appeals may still be taken direct from the Supreme Court of a State to the Privy Council.

(b) Appeals from the High Court involving inter se constitutional questions.

(c) Other appeals from the High Court.

(a) Cases in which appeals may still be taken direct from the Supreme Court of a State to the Privy Council

6. I set out in Annexure ‘B’ the circumstances in which an appeal can be taken direct from the Supreme Court of a State to the Privy Council and give some particulars of the number of cases in which this procedure has been adopted in the last twenty-one years. These appeals could probably only be abolished by the passing of an Act of the United Kingdom Parliament and such an Act would certainly only be passed at the request of the State Parliaments. In view of the difficulty of that procedure, and of the comparatively limited use of appeals from the Supreme Courts to the Privy Council, I recommend that no attempt should be made, at this stage, to prevent appeals in this category.

(b) Appeals involving an inter se constitutional question

7. Inter se questions are questions concerning the line of demarcation between federal and State powers. Appeals involving these questions can only go from the High Court, and the Privy Council can only hear them, if the High Court gives a certificate under section 74 of the Constitution that, for any special reason, the question involved is one that ought to be determined by the Privy Council. One such certificate was given in 1912. No certificate has been given since, and none is ever likely to be given. Logically, this is the first kind of appeal that ought to be abolished, but it could only be abolished by an amendment of the Constitution. In view of the latter consideration, and the fact that effectively there are no appeals on inter se matters, I do not think that we ought to seek formally to abolish appeals in these matters at the present time.

(c) Other appeals from the High Court

8. The remaining category of appeals relates to appeals in all other classes of cases from the High Court (including constitutional cases not involving an inter se question). These appeals can only be taken to the Privy Council by special leave of the Privy Council. I give particulars in Annexure ‘C’ of the number of cases in which the Privy Council has given special leave in the last 21 years.

9. In view of the terms of section 74 of the Constitution, Parliament cannot, without an amendment of the Constitution, wholly abolish the granting of special leave by the Privy Council, but it can ‘ limit ’ the matters in which special leave may be asked. I am firmly of the view—and in this I agree with my predecessor—that action should be taken as soon as possible to impose very real limits on the class of cases in which special leave to appeal to the Privy Council can be granted by that body.

10. One possible area of exclusion of appeals is that of Constitutional cases. The Commonwealth Parliament could, without a Constitutional amendment, legislate to exclude all matters arising under the Constitution or involving its interpretation (other than inter se matters, which, in view of what I have said in paragraph 7 above, can be ignored for present purposes). There are very strong reasons why Constitutional cases should be finally decided by a Court of Judges living in the Federal system.

11. In his earlier Submission my predecessor put forward the proposal that appeals from the High Court might be excluded in all Constitutional, revenue and statutory interpretation cases. This would include revenue and statutory interpretation cases arising under State Law. I think there could be substantial difficulties in determining what cases were to be regarded as ‘statutory interpretation’ cases. Furthermore, adoption of this proposal would not exclude from the Privy Council all cases that fall within the category of revenue and statutory interpretation cases, as, in purely State matters, such an appeal might still go direct from the State Supreme Court to the Privy Council. Consistently with this, I favour allowing the possibility to remain of an appeal from the High Court to the Privy Council in purely State cases so that there will not be two conflicting lines of authority in those cases.

12. My proposal is the abolition of appeals in all matters of Federal jurisdiction (other than inter se matters). This proposal would—putting aside inter se matters—make the exclusion of appeals to the Privy Council complete within this area, because the only appeal from the Supreme Court in such a case is to the High Court. This would make the High Court the final arbiter in all matters of Federal jurisdiction. These are matters that the Constitution recognised at the outset as matters appropriate to be determined by the High Court. These matters, which are set out in sections 75 and 76 of the Constitution, are listed in Annexure ‘D’. They include the Constitutional cases referred to in paragraph 10, above.

Recommendation

13. I recommend that appeals to the Privy Council from the High Court be abolished in all matters of Federal jurisdiction (other than inter se matters) and that I be authorised to prepare the necessary legislation and to make an announcement of the Government’s intention to abolish these appeals.

14. I also recommend that the limitation on the right of appeal should not apply in relation to an appeal from a judgment pronounced in any proceedings which were commenced before the date on which the necessary legislation comes into operation.

ANNEXURE ‘A’

Arguments for Retention of Appeals to Privy Council

The Arguments for retention of appeals to the Privy Council rest, I think, on three considerations:

(a) the desirability of uniformity in the law;

(b) the sentimental aspect of the appeal as a petition to the Sovereign of Australia; and

(c) the importance of the appeal as a British Commonwealth link.

2. As to uniformity, I do not think that this consideration has any force in relation to Constitutional questions or, indeed, to most matters arising under Commonwealth Acts. It is in the field of the Common Law that there is something to be said for uniformity, but the modern tendency of the High Court consciously to take a different view from the Privy Council in cases where it considers an earlier Privy Council decision to be wrong makes the objective of uniformity of somewhat dubious value even in this area. And there are, of course, cases where the High Court has preferred to follow a decision of the House of Lords to a decision of the Privy Council.

3. The second consideration is of substance only if it is true that a substantial number of people in Australia identify the appeal, in form at least, as an appeal to the Queen personally and would consequently be concerned with the removal of this personal appeal. I think that the truth is that very few regard the appeal in this light; indeed, it is probably true that only a small minority of the people have knowledge of the form of the appeal.

4. I doubt that the third consideration has much force today. It has been quite clear, at least 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. Canada, India, Pakistan, Nigeria, Ghana, Cyprus, Tanzania and Kenya have abolished the appeal. The countries that retain it do so with differing limitations as to the right of appeal. Some of these are known to be proposing to terminate the appeal on the ground that it is 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.

5. Australia can provide a court of appeal of this calibre. Our high court enjoys 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. Its members are now also members of the Privy Council and some have sat as members of the Privy Council on the hearing of appeals. That it should be subject to review by the Privy Council is an anachronism.

ANNEXURE ‘B’

Appeals from State Supreme Courts

Appeals to the Privy Council from Supreme Courts of the States are regulated by Orders in Council made under the 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 £500 is involved and in the discretion of the Supreme Court in any case that, in the opinion of that Court, involves a question of general or public importance. However, by virtue of section 39(2) of the Judiciary Act and decisions of the High Court, an appeal does not lie from the decision of the Supreme Court of a State exercising federal jurisdiction ; in any such case the only appeal is to the High Court. In cases decided in the exercise of the ordinary State jurisdiction of the Supreme Court, 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 last 21 years:

Twenty-four of these appeals were from New South Wales, two from Queensland, and one each from Victoria and Western Australia.

ANNEXURE ‘C’

Appeals from the High Court by Special Leave

The following shows, under broad subject headings, the number of appeals from the High Court that were decided by the Privy Council during the 21 years from 1946 to 1966, including cases in respect of which the Privy Council decided that it had no jurisdiction because an ‘inter se’ question was involved:

In the latter half of this period, the number of cases that reached the Privy Council shows a decline (19 cases as against 25 in the first half). The decline is significant if it is kept in mind that the number of cases decided by the High Court has shown a considerable increase in the latter half of the period.

ANNEXURE ‘D’

All matters:

(i) Arising under the Constitution, or involving its interpretation;

(ii) Arising under any laws made by the Parliament;

(iii) Of Admiralty and maritime jurisdiction;

(iv) Relating to the same subject-matter claimed under the laws of different States;

(v) Arising under any treaty;

(vi) Affecting consuls or other representatives of other countries;

(vii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a Party;

(viii) Between States, or between residents of different States, or between a State and a resident of another State;

(ix) In which a writ of Mandamus2 or prohibition or an injunction is sought against an officer of the Commonwealth.

1 See Document 415.

2 Lit. ‘We command’, Crown writ commanding performance of an action.

[NAA: A5842 VOLUME 10]