Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts
| Author | Christopher D. Gilbert |
| DOI | 10.1177/0067205X7800900304 |
| Published date | 01 September 1978 |
| Date | 01 September 1978 |
| Subject Matter | Article |
FEDERAL CONSTITUTIONAL GUARANTEES
OF
THE
STATES: SECTION 106 AND APPEALS
TO
THE
PRIVY COUNCIL FROM STATE
SUPREME COURTS
By CHRISTOPHER D.
GILBERT·
The abolition
of
all appeals from the High Court to the Privy
Council, coupled with the High Court's recent statement that it
no
longer regards itself
as
bound
by
Privy Council decisions, highlights
the fact that appeals still lie, in many matters
of
State jurisdiction,
from State Supreme Courts direct to the Privy Council. In this
article, Mr Gilbert
is
primarily concerned
to
examine the extent
to
which section 106
of
the Commonwealth Constitution may provide
protection for these "direct" appeals. To this end, Mr Gilbert
examines what case-law exists on section 106, and attempts to
place the section in perspective in relation to the rest
of
the
Constitution. The difficult (and largely unexplored) relationship
between section 106 and section
51
is
considered, to discover the
possible reaches
of
Commonwealth legislative power with respect
to the subject-matter protected by section 106. The position
of
tldirect" appeals within the States' constitutional structures
is
looked
at, in order to determine the possible ambit
of
whatever protection
is
offered
by
section 106, and finally, Mr Gilbert analyses the
recent comments
by
Mr lustice Murphy that the abolition
of
Privy
Council appeals from the High Court has meant the consequential
demise
of
"direct" appeals from State courts.
I. INTRODUCTION
The
combination of the respective effects
of
the Privy Council
(Limitation of Appeals)
Act
1968 (Cth) and the Privy Council (Appeals
from the High
Court)
Act
1975
(Cth)
has brought about the abolition
of all appeals from the High
Court
to the Privy Council, irrespective of
whether the appeal involves matters of Federal law
or
purely State law.
The
theoretical possibility of appeals remaining from the High
Court
to the Privy Council in inter
se
constitutional matters, pursuant to a
High
Court
certificate granted under section 74 of the Commonwealth
Constitution, may be ignored, for all practical purposes.1However, the
Commonwealth Acts mentioned above have left untouched the right of
appeal direct from aState Supreme Court to the Privy Council in
matters where questions ofpurely State law are involved. The regulation
of these appeals continues by way of amixture of paramount Imperial
*B.A., LL.M.
(Qld),
Barrister-at-Law; Lecturer in Law, University
of
Queensland.
1
81.
John, "The High Court and the Privy Council; The New Epoch" (1976) 50
A.L.I.389.
348
1978] Section
106
and Appeals
to
the
Privy Council 349
statutes, Imperial Orders in Council, and in some cases, enactments of
local State legislatures.
Accordingly, the way
is
now open for the real possibility of the High
ICourt and the Privy Council giving conflicting decisions on points of
State law, or on points of general common law. As each Court
is
at
the
summit of its own particular hierarchy, neither subordinate to the
other, the strange picture emerges of aState court being faced with
conflicting High Court and Privy Council precedents. There has been
no shortage of commentators to underline the embarrassment and
confusion which could arise in the minds of lawyers, clients, and judges,
if such asituation
is
allowed to continue over along period.2
Consequently, the question has arisen of how these appeals from the
State Supreme Courts direct to the Privy Council might be abolished.
(For
purposes of brevity, these particular appeals will hereinafter be
referred to
as
"direct appeals".) There
is
no doubt that the United
Kingdom Parliament could legislate to abolish direct appeals, and equally
no doubt that the State Parliaments could not. The suggestion has been
made that the Australian Federal Parliament, relying upon one
or
another of the placita of section
51
of the Federal Constitution, could
validly legislate
so
as to abolish direct appeals. To date, the most-often
suggested heads of power which the Commonwealth might use to effect
this abolition are section
51
(xxxviii),3 and section
51
(xxix):'
Indeed,
in 1975, the Whitlam Federal Government did attempt Commonwealth
legislative abolition of direct appeals, in the shape of the Privy Council
Appeals Abolition Bill, which however foundered upon the rock of the
Senate's rejection.
At
least one commentator was apparently of opinion
that, even if the Bill had been passed, it would have been invalid as
being in contravention of, inter alia, section 106 of the Federal
Constitution,li while Sawer was equivocal
as
to whether Commonwealth
legislative action could destroy direct appeals.6
It
is
therefore the purpose of this
art~cle
to examine section 106, and
to consider to what extent, if at all, the section protects aspects of State
constitutional structure, whether direct appeals comprise aportion of
that structure, and whether,
as
aconsequence, direct appeals are
protected from Commonwealth legislative attack by the section.
21bid.; all justices
of
the High
Court
in Viro
v.
R.
(1978)
18
A.L.R. 257;
Murphy J.
in
Commonwealth
v.
Queensland (the Queen 0/ Queensland Case)
(1976) 50 A.L.J.R. 189, 203; and
Blackshield~
"Judges and the Court System" in
Evans (ed.), Labor and the Constitution 1972-1975 (1977) 108-109.
3Nettheim, "The Power
to
Abolish Appeals
to
the Privy Council from Australian
Courts" (1965)
39
A.L.J. 39, 44-48.
4Bickovskii,
"No
Deliberate Innovators:
Mr
Justice Murphy and the Australian
Constitution" (1977) 8F.L. Rev. 460, 466; Sawer, "The British Connection" (1973)
47 A.L.J. 113, 115 (although Sawer seems
to
change his mind
on
this issue: see
ide
116).
5St. John,
Ope
cit. 397-398, n. 40.
60p.
cit.
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