Attorney-General’s Department, Canberra, 16 April 1973
Abolition of Appeals to the Privy Council
A. The Present Position
Appeals from the High Court, other Federal Courts and Territory Supreme Courts
In 1968 the Australian Parliament enacted the Privy Council (Limitation of Appeals) Act. Section 3 of the Act limits appeals from the High Court. The effect of Section 3 is that leave may be asked to appeal to the Privy Council from a decision of the High Court only in purely State matters as distinct from Federal or Territory matters.
It follows that appeals in, for example, constitutional matters are excluded.
On the other hand, the Act does not exclude applications for leave to appeal to the Privy Council from a decision of the High Court where the decision is one in respect of a State matter.
Section 4 of the Act of 1968 excludes altogether appeals to the Privy Council from Federal Courts other than the High Court and from Territory Supreme Courts.
The Act of 1968 leaves untouched the position with regard to appeals from a State Supreme Court in respect of a State matter.
Appeals from State Supreme Courts
As noted above, appeals still lie to the Privy Council from decisions of State Supreme Courts in State matters. As to the procedure for appeals, it is possible to appeal from a judgement of the Supreme Court of a State to the Privy Council either by leave of the Supreme Court concerned or by special leave of the Privy Council itself.
The right to appeal by leave of the Supreme Court is derived from Orders in Council made under Acts of the United Kingdom Parliament.
The appeal by special leave of the Privy Council is an appeal by virtue of the prerogative. An act of the United Kingdbm Parliament would be required to abolish the prerogative appeal.
(3) Summing-up of present position
It will be seen that appeals still lie to the Privy Council in State matters both from the High Court and from State Supreme Courts. This is the area for consideration.
Appeals from the High Court in State matters were left untouched by the Privy Council (Limitation of Appeals) Act 1968. That Act was passed in pursuance of section 74 of the Constitution. Section 74 provides as follows–
‘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 on 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.’
For the present purposes, attention is drawn to the third paragraph of the section.
When the Bill for the Act of l968 was before the Senate, Senator Cohen2 moved an amendment that, if accepted, would have excluded appeals to the Privy Council from the High Court in all matters, including State matters. The amendment was not accepted. The then Government acted on the view that adoption of the amendment might have resulted in the High Court being by-passed in State matters (i.e., by such matters being taken directly to the Privy Council). It was also noted at the time that the power of the Commonwealth Parliament under section 74 is a power to make laws ‘limiting’ appeals to the Privy Council and that this might require some area of appeals to the Privy Council from the High Court to remain.
The Act of 1968 did not deal with the question of appeals to the Privy Council from State Supreme Courts in State matters, on the view that the Australian Parliament was not competent by itself to deal with the matter. Nor, having regard to the Colonial Laws Validity Act, is a State Parliament competent to deal with the matter.
B. The Procedures to be Employed for Abolishing Appeals in State Matters
Without an alteration of the Constitution some legislative participation by the United Kingdom will probably be necessary to abolish appeals to the Privy Council in the one remaining area of matters in which appeals still lie—i.e., in purely State matters.
It has been noted that appeals still lie to the Privy Council from the High Court in State matters. Constitutionally, the Australian Government might decide to take whatever risk may be thought to arise out of the word ‘limiting’ in section 74 of the Constitution and proceed, as Senator Cohen proposed in 1968, to introduce legislation amending the Act of 1968 so as to exclude appeals from the High Court in all matters, including State matters. There would still remain, however, appeals in State matters from State Supreme Courts and it would seem best, at this point of time, not to tackle the problem in a piecemeal way. During the Attorney General‘s discussions in London in January this year, the United Kingdom authorities made it clear that the United Kingdom had no interest of its own in preserving appeals to the Privy Council from State Supreme Courts in State matters. The United Kingdom would be only too glad to participate in abolishing such appeals but it did not want to be caught in a constitutional ‘war’ between the Australian Government and the Governments of the States. In the United Kingdom‘s view, the procedures to be employed were most important.
Various procedures have been under consideration–
(1) In London in January, the Attorney-General suggested that the United Kingdom might consider acting on simple (non-legislative) request from the Australian Government to get rid of what is, after all, an anachronism. The suggestion was not viewed favourably by the United Kingdom authorities.
(2) The course of constitutional alteration pursuant to section 128 of the Constitution i. e., to authorize the Australian Parliament to legislate to abolish Privy Council appeals in all matters.
(3) Adoption of the procedures of section 4 of the Statute of Westminster, involving request and consent legislation by the Australian Parliament, followed by legislation of the United Kingdom Parliament. There would be an important question whether the Australian Government would first confer with the States and secure their concurrence or seek to proceed without the concurrence of all States.
(4) As in (3), but with the additional course, suggested by the Solicitor-General, of there being an agreement between the Australian and United Kingdom Governments on which additional Australian legislation might be rested under the ‘external affairs’ power. Course (4) would still require United Kingdom legislation.
(5) Legislation only of the Australian Parliament in reliance on the view that Section 2(2) of the Statute of Westminster may have given the Australian Parliament legislative power to deal with a matter such as that now under consideration. The validity of this Course is open to doubt. It has not been proposed in the discussions that have so far taken place with the United Kingdom.
The first matter for decision by the Australian Government is whether it should confer with the States. It would seem that there should be consultation, even if, in the end, all the States do not concur in the abolition of appeals in State matters. Conceivably, it might even be possible to persuade the States to adopt a sensible attitude and to agree to total abolition. The sensitivity of the States in the past about the High Court arose out of certain decisions of the High Court in constitutional cases, but appeals in those cases cannot, since the Act of 1968, go beyond the High Court. The area in respect of which appeals still lie to the Privy Council is relatively small. The High Court should in all respects be, as Quick and Garran3 described it, ‘the crown and apex not only of the judicial system of the Commonwealth but of the judicial systems of the States as well.’ No doubt the United Kingdom would hope that the problem could be resolved in Australia. The Australian Government, for its part, would expect that the United Kingdom Government would act on the view of the Australian Government, but it would help in this regard if there had first been discussion between the Australian Government and the State Governments (even if some States were still to hold out after such discussions). The question of appeals to the Privy Council is not the only question of a constitutional nature affecting the United Kingdom and Australia.
In 1972, following extensive discussions between the Australian Government and the Governments of the States, the Prime Minister wrote to the United Kingdom Prime Minister proposing the enactment of United Kingdom legislation to remove limitations on the power of the Parliaments of the Australian States to legislate with respect to merchant shipping.
A copy of the Prime Minister’s letter of 21 September 1972 is attached.4 The Merchant Shipping Act 1894 gives State Parliaments a limited power to legislate inconsistently with British merchant shipping legislation. Certain antique procedural requirements have to be observed.
By reason of the adoption of the Statute of Westminster, the Federal Parliament is not subject to the restrictions that still apply to the States.
The scheme arrived at with the States was that the Federal Government would introduce legislation requesting and consenting to the enactment of United Kingdom legislation. A draft Bill was sent to the United Kingdom and our Draftsmen have also perused a United Kingdom Bill. Although it was not legally necessary for the States to take any formal action themselves it was thought, at the time, to be desirable that they should do so having regard to the fact that the matter to be attended to concerned the legislative power of the States. It was intended that the States would accordingly introduce Bills for short Acts requesting and consenting to the enactment of the United Kingdom Bill and that when the Commonwealth and State Parliaments had enacted legislation the United Kingdom Government would itself introduce a Bill in the United Kingdom Parliament.
In November 1972 Mr Heath advised that the United Kingdom Government would be willing to sponsor the necessary legislation in its Parliament in the terms that had been proposed.
It will be seen that the first legislative step must be taken in Australia and that the legally effective legislation, so far as Australian legislation is concerned, will be the legislation of the Australian Parliament. The State legislation will have no legal effect, but will mark the co-operation of the States in the matter. (It may be noted, by way of aside, that the Australian Government could not prevent the State Governments from introducing the legislation contemplated last year.)
The new Australian Government has not yet considered whether the procedures concerning merchant shipping that were worked out with the States by the previous Government should be carried into effect.
On one view, they should be carried into effect and perhaps provide a basis for proceeding similarly in the Privy Council appeals matters and also in connection with the consideration that the States are presently giving to ways and means of getting rid of the fetters of the Colonial Laws Validity Act generally and not just with regard to merchant shipping (the exercise of the last year). The Statute of Westminster does not apply to the States. From time to time when the discussions concerning merchant shipping were in progress the question was raised whether action should not be taken to free the States altogether from the continued application to the States of the Colonial Laws Validity Act.
The effect of Section 2 of that Act is that, generally speaking, States cannot legislate inconsistently with United Kingdom legislation applying to the States. Because of fears that the widening of the project would result in further delays the States preferred to have the initial approach confined to the subject of merchant shipping.
Clearly enough, the Privy Council matter cannot be brought to finality during the Prime Minister’s visit to London. It would be helpful however to ascertain what present United Kingdom thinking is concerning procedures. It would seem likely that the United Kingdom would favour moving through the procedures of Section 4 of the Statute of Westminster. It would be interesting to find out what the United Kingdom attitude would be if the Australian Government had not discussed the matter with the States, or if, after discussions, some States still wished to retain the appeal to the Privy Council in State matters. The Australian Government would no doubt hope that, whatever the view of the States might be, the United Kingdom would act, under Section 4 of the Statute of Westminster, on the view of the Australian Government. A copy of Mr Whitlam’s letter to Mr Heath is attached.5
It would seem to be a matter for careful consideration whether the Australian Government should not (a) agree with the procedures previously worked out with regard to merchant shipping, and (b) be ready to adopt similar procedure with regard to the Privy Council matter and the freeing of the States from the restrictions of the Colonial Laws Validity Act as regards the enactment of State legislation inconsistent with United Kingdom legislation still applying in the States (though without, of course, enlarging in any way the legislative powers of the States under the Constitution). Readiness of the Australian Government to proceed in this way might well result in all the States going along with the policy of abolishing appeals to the Privy Council.
There are other changes of a more incidental nature that would need to be considered such as the obsolete power of the Queen to disallow Federal and State legislation, the requirements to reserve State legislation for the Queen’s assent and the position and status of State Governors generally.
If discussions are to take place with the States on matters affecting them, consideration might be given to including an appropriate item in the agenda of a future Premiers’ Conference.
1 Sent by Harders to Bunting as a briefing paper for Whitlam in London.
2 Samuel Herbert Cohen (ALP), Senator for Victoria, 1962–69.
3 John Quick and Robert Garran, The annotated Constitution of the Australian Commonwealth (1901).
4 Not published.
5 See Document 453.
[NAA: A1209, 1973/6292]