APPEALS TO THE PRIVY COUNCIL IN CONSTITUTIONAL
CASES.
A
PROPOSAL EXAMINED.
By K. H. BAILEY, M.A., B.C.L. (Oxon.); LL.M. (Melb.), Professor of
Public Law in the University of Melbourne.
Australian appeals to the Privy Council have
I NTERMITTENTLY,
always been "in the news." The desire to create in Australia
an appellate tribunal which would be a substitute for the "distant
and expensive system of appeal" to the Privy Council was one of the
substantial motives for federating, and the provisions of the Commonwealth Constitution1 embody a compromise between those, on
the one hand, who wished to leave appeals from Australia as open as
from Canada, and on the other those who wished to eliminate appeals
to the Privy Council altogether. This article will be confined to the
discussion of appeals from the High Oourt.
Appeals from State
Courts raise diff.erent questions altogether.
The constitutional provisions are unique and, for convenient reference, may be summarily stated as follows :-(1) There is no appeal
"as of right" from the High Court to the Privy Council; (2) A question as to "the limits inter se of the constitutional powers of the
Commonwealth and those of any State or States"2 cannot go at
all from the High Court to the Privy Council unless the High Court
certifies that the question is one which ought to be determined by the
Privy Council; (3) in other matters there is the usual" prerogative
appeal, " or appeal by special leave of the Privy Council, though the
Commonwealth Parliament has express power to make laws limiting
the matters in which such leave may he asked.
The compromise of 1900 has naturally been attacked from both
sides. The Labour Party has embodied the elimination of appeals
to the Privy Council as one of the planks in its platform. At the
other end of the scale there stand the repeated suggestions that the
Privy Council should be made as free to give leave to appeal in
constitutional cases as it is in other matters.
This latter suggestion was pressed by a number of witnesses before
Sir John Peden's Royal Commission on the Constituticm, and was
revived at the Constitutional Conference of 1934 by the State of
Tasmania. The Royal Commission did not recommend the proposed
change, explaining that in its opinion . Australian sentiment would be
opposed to such a step.s Nor did any other government support the
proposal in the Conference of 1934.4
Sentiment in such matters,
however, is a very unstable thing, and the popularity of a tribunal
is apt to depend very much on the effect of the last important decision
1. Section 74.
2. These "inter 8e" questions do not altogether exhaust the category of matters involvinc
the interpretation of the Constitution.
But in most cases the High Court is the final
interpreter of the Constitution.
3. Report, (P. 253.
4. There was a frank and valuable discussion: Cwlth. ParI. Pap, No. 134, of 1934-5,
liP. 66-9.
1
2
RES JUDICATAE
it has rendered. Just at the moment indeed the Privy Council is an
object of some apprehension in Australia, because it is f.eared that the
Judicial Committee may possibly, in appeals now pending, reverse
Australian decisions upon which have been based the controlled
marketing schemes in dried fruits and dairy products, and the State
machinery for controlling road transport. Proposals are even being
mooted for a Commonwealth Act (under the last paragraph of Section
74) to debar litigants from seeking leave to appeal in cases arising
under Section 92 of the Constitution. But the apprehensions of today may quite easily turn into the trust and reliance of to-morrow.
It may be useful to examine the legal, as distinct from the political,
considerations which ought to be taken into account in deciding for
or against the proposal to abolish the requirement of a certificate
from the High Court before the Privy Council can entertain an
appeal from the High Court on an inter se constitutional question.
The case for the change proposed rests upon dissatisfaction with
the High Court of Australia as a tribunal of final resort upon inter
se questions. The criticism of the Court, apart from personal considerations which call for no comment here, is for the most part
threefold. First, that its interpretation of the Constitution lacks
Second, that the number of individual
stability and continuity.
judgments and the radical differences of approach which have characterized the Justices make the law laid down by the Court both obscure
and complex. Third, that local prepossessions and sensitiveness to
Australian exigencies play, or may play, too large a part in the
Court's decisions. Even if one were to concede, however, the reality
of these objections, that would not prove at all the case for the proposed change. It must be established not only that constitutional
interpretation by the Privy Council is free from such objections, but
also that such fre.edom is a matter to be desired. The submission of
this article is that these vital conditions are not really satisfied, and
that there is no substantial legal case for the change proposed.
The efficacy of a resort to the Privy Council in constitutional cases
must be considered carefully, in the light both of such experience as
we have had in Australia and, more particularly, in the light of
Canadian experience. For there has been unrestricted appeal from
the Supreme Court of Canada to the Privy Council for nearly 70
years now, and many of the issues raised are closely akin to. the
constitutional issues with which" Australian lawyers are familiar.
First of all, then, does the Canadian experiment suggest that interpretation by the Privy Council would be free from instability' The
great reversals of 1920, and indeed the whole history of the judicial
interpretation both of Section 92 and of the Commonwealth's industrial powers, have deeply impressed Australian lawyers with the
instability of the High Court as an interpreter of the Constitution.
In the hands of the Privy Council, however, the Canadian Constitution has undergone transformations I!Icarcely less spectacular.
The story may be told, at the risk, perhaps, of excessive quotation,
PRIVY COUNCIL APPEALS IN CONSTITUTIONAL CASES
3
in the words of Professor Herbert Smith, sometime of the University
of Toronto.o
"Fifty years ago (1882) the Privy Council ... gave an interpretation of the distribution of legislative power in Canada which was
wholly in accord with the principles declared by statesmen of all
parties in 186'7, as we find them expressed in the Canadian and
Imp,erial Parliamentary debates.
That is to say, they declared
certain liquor legislation enacted by the Dominion to be valid, on the
ground that the matter in question was one of common concern to
the whole of Canada. . . .
"This principle was re-affirmed in 1896, but shows some signs of
becoming obscured in the decisions of the next 20 years. It was not
definitely repudiated till after the war. At this period the Board
seems to have accepted the political philosophy of Lord Haldane,
who, as we know, had his own theory of federal government. In his
opinion the government of Canada was not truly federated at all, but
he did his best to make it so. In a series of decisions dating from 1922
to 1925, the Privy Council placed the distribution of legislative power
in Canada upon a new basis, which would certainly have surprised
the founders of the Confederation. . . .
"The general effect of these decisions was that' the fundamental
character of the Canadian Constitution was reversed, and the general
residuary power of making laws was given to the provinces instead
of to the Dominion. The result of the Aviation and Radio Cases (in
1932) is that the tide seems to hav,e turned back in the direction of
re-asserting the principles of 1867."
In the writer's opinion, it would be disastrous, in a Constitution
as difficult to amend as ours, if judicial interpretation were rigidly
But Canadian experienc,e suggests irresistibly that such
stable.
stability need not be f,eared, and could not be expected, from the Privy
Council. The change proposed would give no guarantee at all of
permanent stability and continuity.
We come next to clarity of exposition. This is a matter of particular concern, not only to the luckless law student but to the profession
as a whole. It is c,ertainly true that the publication of individual
reasons for judgment by all the members of a large Bench does
frequently produce such a diversity of exposition that advice must
often be uncertain and tentative. The High Court is, of course, not
alone in creating difficulties of this kind. The same problem presents
itself in other tribunals of last resort-the Supreme Court of the
United States, for instance, and the House of Lords itself. American
lawyers make very much the same criticisms of their Supreme Court
as Australian lawyers do of the High Court.
At first sight the Privy Council's practice of giving only a single
judgment appears to offer a solution of this particular difficulty.
That practice, however, has not so far commended itself to any other
tribunal of last resort, and there are good reasons for thinking that
its advantages are outweighed by its disadvantages. Firstly, the publication of individual judgments, more particularly individual
6. [19821 L.Q.R.. at pp. 143-5.
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4
dissents, does commonly define more clearly the issues involved, and
probably tends to sharpen the sense of judicial responsibility.
Secondly, the Privy Council practice lends itself to a search for some
ground of decision which will command the greatest measure of agreement. Often enough, the attempt to find the highest common factor
in a number of judicial attitudes results in a decision based on some
minor, or even some technical, point, without any decision on the real
merits of the issue. The recent decisions in James v. Oowan6 and
A-G. for New South Wales v. Trethowan 7 turned really on very narrow
points. In both those cases the Board expressly declined to offer any
opinion on the ultimate issues involved. Such a refusal leaves the
judgments with little more value than decisions upon the particular
facts litigated. In a sense such judgments do attain clarity. But
it is not the kind of claritv that is most needed in constitutional cases.
The issues involved will" often go to the very roots of systems of
government, and in resolving them a Court needs at least as much
(in Marshall's phrase) of the statesman's breadth of view as of the
lawyer's rigour. An authoritative decision on the special facts is
not at all what the Australian people should expect from a tribunal
vested with the ultimate authority to control constitutional interpretation. But the technique of the Privy Council lends itself only too
The Australian lawyer cannot
readily to decisions of that kind.
surv,ey the Privy Council's few decisions in Australian constitutional
cases without experiencing acute disappointment. s In the writer's
view, full and painful recognition of the complexity of Australian
constitutional law as laid down in the High Court does not point at
all clearly in the direction of the Judicial Committee.
Freedom from local prepossessions, however, the Privy Council
is undoubtedly well adapted to secure. But in constitutional matters
freedom from local prepossessions may be secured at much too high
a price. The experienced and able witnesses9 who pressed the proposed change on the Royal Commission spoke of the advantage of
leaving cases to be decided "from a purely disinterested and expert
legal point of view" and the desirability of" a Court away from Australia to which matters of pure interpretation could be referred."
But in most of the constitutional cases, if not in all, something more
than "pure interpretation" and something more than expert legal
technique is required. As Professor Smith put it: "In the field of
public law the gravity of the issues involved and the difficulty of
legislative change compel the judges to act upon broader views of
policy. "10 Not only is some legal knowledge and experience desirable if Courts are to understand the substance as well as the form of
the matters at stake, but in Bench and Bar alike the adequate handling of such issues is a task requiring a considerable amount of
specialized knowledge. Cases of this kind must necessarily come
6. [1982] A.C. 542.
7. [1982] A.C. 526.
S. See Sir John Latham's comment, Cwlth. Pari. Pap., No. 184 of 1984-5, p. 69.
9. The Hon. F. W. Eggleston and the late Hon. W. A. Holman; Minutes of Evidence,
pp. 785 and 1822 respectively.
10. [1982] L.Q.R., at p. 143.
PRIVY COUNCIL APPEALS IN CONSTITUTIONAL CASES
5
from .Australia so seldom that with all their ability their Lordships
cannot hope to acquire ad hoc the experience of a lifetime that has
gone to the making of the High Court's judgments. Whatever may
be said in favour of resort to the Privy Council in common law cases,
it must be sorrowfully admitted that the scanty .Australian experi,ence of constitutional appeals to the Judicial Committee has not illustrated the advantages of distance.
In the writer's opinion, ther,efore, no strong case can be made out
for the proposed change upon legal grounds. From the .Australian
point of view, moreover, it is significant that in recent years, at any
rate, there has been persistent criticism in Canada of the decisions of
the Judicial Committee in constitutional cases. Even French Canadian opinion, hitherto distrustful of leaving constitutional matters
to the Supreme Court of Canada, appears to be weakening considerably in its support of appeals to the Privy Council. l l When at the
recent conference on British Commonwealth Relations at Toronto
(1933) it was suggested that the Privy Council might be r,econstituted to form a tribunal for the decision of disputes between
different parts of the Empire, an eminent Canadian, by no means an
extreme nationalist, replied that "it would be a mistake to associate
the tribunal with the Privy Council, as that would prejudice it in
the popular mind."
Under present conditions, there are still further factors which
operate to make the proposed change undesirable. To vest in the
Judicial Committee ultimate responsibility for the interpretation of
the Commonwealth Constitution would inevitably place a fresh strain
upon relations betw,een Britain and .Australia. When Sir Henry
Barwell told the Royal Commission12 that "a decision by the Privy ,
Council would in every case be accepted without demur, simply
because it would be given by a judicial tribunal of the very highest
standing," he expressed what is probably a very widespread conviction in .Australia. But almost the very reverse is the truth.
Our
own small .Australian experience is directly in the opposite direction,
and Professor Kennedy ranks the decision in the Canadian case of
NadJan v. The King in 1926 as one important factor in causing the
dissatisfaction from which arose the Canadian demand for the Statute
of Westminster. The effects of Privy Council decisions in the Irish
Free State have been still more divisive. .After all, many of these
constitutional questions involve strenuous political contests, and raise
large social and economic issues. Large groups of people are bound
to feel a sense of injustice, whichever way the decision goes. Nobody
who cares for the Empire could feel anything but anxiety if the
tribunal of final resort on such matters were in all cases a British
Court. .A former Canadian Minister of Justice remarked recently
that" if one remembers the conflicts in Ireland, .Australia, and even
Canada, following decisions given by the Privy Council, it is rather
difficult to say that the practice links the Dominions to the Crown."
11. See the opinions expressed and quoted by Professor Kennedy of Toronto in [19U]
L.Q.R.,. at pp. 214-5.
12. Minutes of Evidence, p. 973.