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27 May 2022

The High Court of Australia got its name from being the highest court in Australia. However, just because it is the highest court geographically in Australia does not mean it has always been the highest court in the Australian legal system. From 1 January 1901 to 2 March 1986, that position was held by the Judicial Committee of the Privy Council of the United Kingdom. This meant that, for many decades, Australian cases could be appealed to the UK. And this understandably led to many problems, which we will discuss in this article.

Previously, we have considered how the Governor-General of Australia acts on the advice of the Federal Executive Council. This is a tradition inherited from the UK, where the monarch acts on the advice of the Privy Council. In the UK it is formally recognised as ‘Her Majesty’s Most Honourable Privy Council.’ In Australian legislation, it is also known as ‘Her Majesty in Council’ or ‘Queen in Council.’1 The members of the House of Commons (lower house) that are part of the Privy Council are the elected executive branch of the UK government, as is also the case in Australia. However, unlike Australia, members of the House of Lords (upper house) are also included, because much of the House of Lords consists of the nobility. However, aside from Cabinet (elected executive), the next most important part of the Privy Council is the Judicial Committee. The other committees are of such limited importance that the Judicial Committee is more commonly referred to as the Privy Council, which I will use for the rest of this article.

The Judicial Committee of the Privy Council consists mostly of senior UK judges, though at times, especially in the first part of the 20th century, judges from other British dominions, like Australia, have been part of it. The Privy Council operated alongside the House of Lords, which has had judicial power for centuries. Whereas the House of Lords was the senior appellate court for most domestic matters in the UK, the Privy Council heard a few domestic matters, and all appeals from courts in the rest of the Commonwealth of Nations/British Empire. From 1876 to 2009, 12 Lords of Appeal in Ordinary, or Law Lords, formed the Appellate Committee of the House of Lords.2 The British seem to have a thing for committees. Appeals to the Privy Council were appeals to the Queen/King in Council, while appeals to the House of Lords were appeals to the Queen/King in Parliament. In both cases, the appeal was formally made to the monarch, who was presented with advice from the court, which they followed. The reason the House of Lords is important to this discussion is that it allows us to understand how the Privy Council fits into the UK legal system. Plus, many members of the Privy Council were also Law Lords.3

The right to appeal to the Privy Council existed in all six colonies of Australia, as it did for all other British colonies and dominions (self-governing members of the Commonwealth of Nations). One case that I have cited before is Cooper v Stuart (1889) 14 App Cas 286, which was an appeal from the Supreme Court of New South Wales to the Privy Council. This was extended to the High Court of Australia, although Section 74 of the Constitution said that before a case involving the limits constitutional powers of the Commonwealth government or State governments could be appealed from the High Court to the Privy Council, the High Court had to approve of that appeal. Section 74 was a result of a compromise between most of the framers, who did not want to give the Privy Council any role, and the British Parliament, who wouldn’t pass the Constitution without the Privy Council being given a role.4 The British Council was backed by Samuel Griffith, who became High Court Chief Justice, so Section 74 was created.5

The relationship between the Privy Council and High Court was tumultuous from the start. Section 73(ii) allowed for appeals to be made from Supreme Courts to the High Court on any matter for which there was a right to appeal from the Supreme Court to the Privy Council before Federation. However, the Constitution did not remove the right for those courts to appeal to the Privy Council, meaning that it was possible to go around the High Court of Australia and go straight to the Privy Council. This obviously was a source of frustration for the High Court. Additionally, the UK has the doctrine of ‘parliamentary sovereignty’ which means that “legislation cannot be questioned by the courts.”6 This is because they do not have a written constitution.7 In contrast, Australia allows laws to be declared invalid with the Constitution, and state laws declared invalid with Commonwealth laws, through judicial review.8 Yet, despite having two very different systems, the Privy Court was allowed to overrule the High Court, even though they had no experience with constitutional law.

One constitutional law problem was the approach to interpreting the Constitution. As mentioned in The Australian Government #14, in Webb v Outtrim [1907] AC 81 the Privy Council complained that the High Court was interpreting the Constitution based on the intentions of the Australian framers who drafted the Constitution, rather than the intentions of the British Parliament who passed it as a law. This continued to be a problem when the High Court abandoned that approach to interpretation, and adopted an approach that focused on the literal, not intended, meaning of the words.9

Section 74 applied to “inter se” questions about the limitations of the powers of the Commonwealth and a State, or two States. This meant finding when the power of government ended and the power of another began. However, the only time a Section 74 certificate of appeal was granted was in Attorney-General (Cth) v Colonial Sugar Refining Co Ltd [1914] AC 237. This was because the Privy Council could simply decide that a question was not an inter se question, and so Section 74 did not apply, meaning that the High Court could not stop the Privy Council from hearing cases.10 Between the right to appeal from the States straight to the Privy Council, and Section 74 basically being made useless, the High Court was powerless to stop the Privy Council from hearing cases. And because the Privy Council often applied UK law, not Australian law, and did not have experience with written constitutions, the High Court became dissatisfied with the system. However, because Privy Council rulings were often made in favour of States, rather than the Commonwealth, many “State judges [were] bent in retaining Privy Council appeals.”11

Before we look at how this problem was resolved, I would like to provide one example to show just how bad the relationship was.12 When the time came to establish the High Court, through the Judiciary Act 1903 (Cth), even Griffith, who made the original draft of the bill, was aware of the potential for Section 74 to be abused by the Privy Council. Therefore, Section 39 of the Judiciary Act 1903 (Cth) was created. Subsection (1) removed any State jurisdiction they might have in federal matters, and subsection (2) instead gave them federal jurisdiction in those federal matters, with some strings attached. Subsection (2) basically meant that a decision by a State’s Supreme Court, in either its Trial or Appellate Division, would be “final and conclusive,” unless it was appealed to the High Court. This prevented those decisions from any Supreme Court from being appealed straight to the Privy Council.13 Then, in In Re the Income Tax Acts [1905] VLR 463,14 Hodges J of the Supreme Court of Victoria granted leave to appeal directly to the Privy Council, arguing that Section 39 was invalid.15

Now, this is where it gets complex. In D’Emden v Pedder (1904) 1 CLR 91, the question was whether a stamp duty imposed by Tasmania would apply to the income receipts of Commonwealth officials in the state. The High Court established the doctrine of ‘implied intergovernmental immunities,’ and said each of the six States and the Commonwealth is “a sovereign State,” except to the extent that they are bound by the Constitution and “the Imperial connection” (109). This means that the laws of the Commonwealth cannot affect State governments, except as allowed by the Constitution and Imperial laws, and the same goes for State laws and the Commonwealth government. The court concluded that applying the Tasmanian stamp duty to Commonwealth officials violated the exclusive powers granted to the Commonwealth under Section 52 of the Constitution. This was affirmed in relation to Victorian taxation of Commonwealth officials in Deakin v Webb (1904) 1 CLR 585. That case involved an ‘inter se question,’ but the court refused to issue a certificate. In both cases, the High Court agreed with the conclusion in the US case McCulloch v Maryland, 17 US 316 (1819). In fact, in D’Emden v Pedder, at 113, Griffith CJ said that if the High Court was unable to “come to a clear conclusion” on its own, it would have simply applied McCulloch. Griffith CJ, a framer of the Constitution, had this to say about the influence of US cases in Australia, at 113:

“[S]ome, if not all, of the framers of that Constitution were familiar … with the Constitution of the United States. When, therefore, under these circumstances, we find embodied in the [Australian] Constitution provisions undistinguishable in substance, though varied in form, from provisions of the Constitution of the United States, … it is not an unreasonable inference that its framers intended that like provisions should receive like interpretation.”

I plan to do a breakdown of D’Emden v Pedder at some point. However, that is beyond the scope of this article, which is already long enough as is. Therefore, I recommend you check out this video by Renato Saeger Magalhães Costa. I seriously cannot recommend this guy enough!

However, the Victorian government was not happy with the conclusion in Deakin v Webb. That is why they went to court again to get an appeal to the Privy Council. Hodges J said that the Victorian Supreme Court had been given this right to appeal to the Privy Council by an order from the Her Majesty in Council, Queen Victoria, and the Commonwealth could not use Section 39 to take this away. The Privy Council agreed, in Webb v Outtrim [1907] AC 81. However, the High Court was understandably frustrated when, not only did the Victorian government go over their head to the Privy Council to get a better ruling, but the Privy Council then said, at 88, that although in the US the Supreme Court could invalidate State laws that were inconsistent with the Constitution, this was not the case in Australia. However, as we saw in the last article, Section 76(i) of the Constitution allowed Parliament to give the High Court the power to do exactly that, which it was granted in Section 30 of the Judiciary Act. In response, the High Court in Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 said that Webb v Outtrim was inconsistent with Section 74 of the Constitution, because the only reason it was heard was that Hodges J had undermined the High Court’s exclusive authority to issue certificates of appeal on inter se matters.

I hope that the above discussion demonstrates just how tense the relationship between the Privy Council and High Court was. Because the High Court often applied British common law, not Australian law, and because it was unfamiliar with the Australian legal system and Constitution. In Parker v R (1963) 111 CLR 610, a criminal law matter involving the defence of provocation in murder cases, Dixon CJ, Taylor, Menzies, Windeyer, and Owen JJ were divided on some matters, but all four Justices agreed with Dixon CJ when he said, at 632, that:

“Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied [DPP v Smith [1961] AC 290] I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept … [and] should not be used as authority in Australia at all.”

Dixon CJ refused even to discuss DPP v Smith, except to say that it should not be used, because it was repugnant to Australian common law. As some of you may have picked up, the use of ‘AC’ (Appeal Cases, formerly App Cas) in the citation means that this is UK law, specifically from the House of Lords. Remember, there is a lot of overlap in the membership of the Law Lords and Privy Council. The Privy Council immediately overruled the High Court in Parker v The Queen [1964] AC 1369, and applied DPP v Smith. But for the Australian government, that would be a bridge too far. Four years later, the Privy Council (Limitation of Appeals) Act 1968 (Cth) was passed. Under it, cases involving federal legislation could not be heard by the Privy Council, and cases involving only State legislation had to go through the High Court first. Then, the Privy Council (Appeals from the High Court) Act 1975 (Cth) said that only cases already in the system when the law came into effect could be heard by the Privy Council. The first Act was upheld by the Privy Council in Kitano v Commonwealth [1976] AC 99, and the second Act by the High Court in Attorney-General (Cth) v T & G Mutual Life Society Ltd (1978) 144 CLR 161. By this time, the British government had accepted the fact that many Commonwealth of Nations members were removing the Privy Council from their legal systems. With the passage of these two laws, all cases that could be appealed under the royal prerogative first referred to in Cushing v Dupuy were blocked. This was formalised in the Australia Act 1986 (Cth), which was passed in Australia and the UK.15 Finally, in Viro v R (1978) 141 CLR 88, the High Court said that it would not be bound to follow any precedent set by the Privy Council, completely removing the Privy Council from the Australian legal system.

Despite the fact that the original Constitution passed by the citizens of all colonies did not allow for appeals to the Privy Council on State or Commonwealth constitutional matters, the British government decided that it knew what was best for Australia, and went against the will of people. Yet even with the passage of the Australia Act 1986 (Cth), Section 74 still remains in the Constitution. Although it has been left useless because of legislation and case law, it remains as a relic to remind Australians of how our legal system has developed.

This was a long article, and another legally complex one, but it should be the last one like it (hopefully). This is the end of the introductory series to the Australian Government and Constitution. Moving forward, I will be zooming in on particular cases, provisions, and topics, discussing them in more detail, but these discussions will be more focused.

Footnotes

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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