Thus the suggestion of the Commonwealth Bill of 1891 was practically adopted by the Adelaide session of the Convention of 18971898. But at the subsequent sessions it was objected that the clause as it stood would allow an appeal to the Privy Council in the very cases which were specially of a kind to be finally decided in Australia-i.e., those in which the interpretation of the Constitution was involved. The words, " in which the public interests of the Commonwealth, or of any State, or of any other part of Her Dominions are concerned," were therefore omitted and in their place were inserted the words "not involving the interpretation of the Constitution of the Commonwealth or of a State, or in any matter involving the interests of any other part of Her Majesty's dominions." Attempts were also made to prevent appeals direct from a State Court to the Privy Council; to preserve the prerogative right of appeal to the Privy Council in all cases, whether constitutional or not; and to prevent that right being cut down by the Federal Parliament; but all these were negatived

When the draft Bill was submitted to the Colonial Office, with a view to its being introduced into the Imperial Parliament, great objection was taken by the Law Officers of the Crown to Clause 74 in which the provisions as to appeal to the Privy Council were embodied. Generally, it was urged that the restriction of the right of appeal was undesirable; and, in particular, it was objected that there would be much difficulty in deciding what were matters "involving the public interests of any other parts of Her Majesty's dominions," and that the final decision in important questions as to the boundaries of Federal and State powers might seriously affect the interests of other parts of the Empire-especially those of banks and other institutions having large interests in Australiaand should therefore be left to the highest Court of the Empire, a Court free from any suspicion of local bias. On the general question of the power to limit the right of appeal, the Delegates answered that the Bill only conferred on the Commonwealth a power which was already vested in the Parliament of each of the several States. This contention was accepted as valid by the Colonial Office. On the two particular questions indicated above there was a long discussion which is fully detailed by Messrs. Quick and Garran [Annot. Const. Australian Comm., pp. 236-249]. Finally, a compromise was agreed to which left the clause in the following form :

"Section 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."

As to the practical effect of this section, there are several points From State to which attention should be drawn. In the first place, it does not Courts, affect the right of appeal direct from State Courts to the Privy Council. As Professor Moore* says :

"The jurisdiction of the High Court to entertain appeals from the State Courts [under Sec. 73, see Chapter XI.] does not extinguish the right of a litigant to appeal from the highest Court of the State to the Queen in Council; the jurisdiction of the High Court is concurrent with, not exclusive of, the jurisdiction of the Queen in Council. The restrictive provisions of Section 74 apply only where the High Court is the tribunal resorted to. The practice now well established in regard to judgments of the Supreme Courts of the Provinces in Canada is reproduced in the Commonwealth."†

But where the appeal has, as a fact, been made to the High Court, From High then under Sec. 73, the judgment of the High Court is final and Court. conclusive. So that no further appeal to the Privy Council could be made as a matter of right from a judgment of the High Court acting as a Court of Appeal from a judgment of one of the State Courts; though in the ordinary case the Privy Council could still -by the exercise of the prerogative right-grant special leave to appeal from a judgment of the High Court sitting as a Court of Appeal.

But such special leave cannot be granted by the Privy Council Leave to in any case which falls under the particular terms of the first part Appeal. of Sec. 74-i.e., as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, etc., etc." In such cases there can be no appeal to the Privy Council [except upon a certificate given by the High Court, as provided for in Sec. 74] from any judgment of the High Court given in the exercise either of its original or of its appellate jurisdiction. This involves some important considerations:

(i.) The prohibition applies only to judgments of the High Court. It does not affect judgments of the State Courts. Therefore" any judgment of the Supreme Court of a State may, even if it involves constitutional questions, be appealed from to the Privy Council direct; though if the appellant chooses to adopt the alternative of appealing to the High Court instead of to the Privy Council, there can be no further appeal to the Privy Council unless the High Court certifies that such an appeal is proper.

"The result does not appear to be altogether satisfactory. Whatever view may be taken of the expediency of retaining a right of appeal to the Privy Council in constitutional questions, it would at least seem that the Privy Council ought not to be

"The Commonwealth of Australia," p. 252.

† As to the conditions under which there is such a right of appeal from the State Courts in Australia, see the Table given by Professor Moore in “The Commonwealth of Australia" at p. 256.

M

Appeal on
Certificate.

required to decide any such question without having, for its assistance, the judgment of the highest Court in Australia. As it is, the decision of the High Court on a certain class of constitutional questions is final, unless the High Court certifies, for special reasons, that an appeal ought to be allowed to the Privy Council; but if any such question arises in the Supreme Court of a State, an appeal may be had direct to the Privy Council, passing by the High Court altogether. There is thus a lack of unity in the system of interpreting the fundamental law of the Commonwealth. There is also a lack of consistency; the principle that the interpretation of the Constitution, as between Commonwealth and State, ought to rest with the Australian Courts, is affirmed by the provision which. makes the decision of the High Court in such cases ordinarily final, and denied by the reservation of the full right of appeal from the State Courts to the Privy Council."

Messrs. Quick and Garran go on to point out that this anomaly can be remedied in two ways. As the right of appeal to the Privy Council from the Supreme Courts of the States depends on Orders in Council, the Imperial Government could, by altering those Orders, abolish the right of appeal in questions as to the limits of constitutional powers. Or-since the Federal Parliament has power under Secs. 76 and 77 to confer upon the High Court exclusive original jurisdiction in "cases arising under this Constitution or involving its interpretation "-the Federal Parliament could, by exercising this power, prevent State Courts from hearing such cases.

(ii.) The words "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" do not, as Professor Moore points out, † exhaust possible constitutional decisions of the High Court, even in the narrowest sense of the word 'constitutional.' The interpretation of the Commonwealth Constitution on many points will fall without those terms. The distribution of power amongst the organs of the Commonwealth Government; the exercise of power by Commonwealth or State in excess of their respective powers, but not in derogation of the powers of the other, are illustrations. Questions. of proprietary right, such as have arisen between the Dominion and the Provinces in Canada, and are not unlikely to arise in Australia, are hardly questions of 'constitutional powers.'

(iii) The power of the High Court to grant a certificate to appeal in the cases withdrawn from the prerogative power, is established by the Constitution and cannot be taken away or affected by the Parliament. It differs from the 'leave of the Supreme Court,' which, under the Orders in Council, is one of the conditions of 'the appeal as of right' from Colonial Courts, since the High Court is to certify only if satisfied that for any special reason the certificate * Quick and Garran : "Annot. Const. Australian Comm.," p. 754. "Commonwealth of Australia," p. 251.

should be granted.' The 'special reasons' which will satisfy the High Court must, of course, to a great extent be a matter of conjecture.. But many conceivable cases 'as to the limits inter se' of the constitutional powers in question might depend upon principles of common application throughout the Empire, and upon which it is eminently desirable that there should be a uniform rule declared by a common authority. Again, a case in which the High Court is divided in opinion, or in which it disagrees with a previous decision of the Court, may furnish a special reason for certifying for an appeal to the Queen in Council.”*

* "The Commonwealth of Australia," p. 249.

United States.

Canada.

CHAPTER XIII.
REVENUE.

In each Union of States one of the first concerns of those who are responsible for drafting the Act of Union is to secure to the Central Government an adequate revenue. In doing so, the difficulty has always been to secure the financial stability of the Governments of the several States whilst allotting sufficient revenue to the new Government that is set over them by the Constitution. Of all the Union Constitutions, that of the United States deals with the question of revenue on the broadest lines and with the fewest safeguards to the financial position of the several States. SubSec. 1, Sec. 8 of Article I. of the Constitution gives Congress power to levy and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States," with the one limitation that all duties, imposts and excises shall be uniform throughout the United States."* Thus "in the United States, revenue raised by Congress from customs and excise, or from any other source, is entirely at the disposal of the Federal Government, and the States are obliged to rely entirely on direct taxation to meet their own expenditure."†

In Canada the respective powers of the Dominion and Provincial Legislatures to impose taxation for the raising of revenue are laid down by Sub-Sec. 3 of Sec. 91, and Sub-Secs. 2 and 9 of Sec. 92 of the British North America Act. Sub-Sec. 3 of Sec. 91 is one of the sub-sections detailing "for greater certainty, but not so as to restrict the generality of the foregoing terms of this section " the specific classes of subjects to which "the exclusive legislative authority of the Parliament of Canada extends." The subject enumerated in Sec. 3 is "the raising of money by any mode or system of taxation." Sub-Secs. 2 and 9 of Sec. 92, on the other hand, are two of the sub-sections enumerating the classes of subjects on which the Legislature in each Province may exclusively make laws. The subject enumerated in Sub-Sec. 2 is: "Direct taxation within the Province in order to the raising of a revenue

* Vide also Article I., Sec. X., Sub-sec. 2: "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports and exports shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the Congress."

† Quick and Garran: “Annotated Const. Australian Comm.,” p. 832.