Australia Act 1986 - Appeals To The Privy Council

Appeals To The Privy Council

At federation in 1901, the supreme court of each colony became the supreme court of that State. In 1903, a High Court of Australia was established, one of whose functions was to hear appeals from the State supreme courts.

The draft of the Constitution that was presented to the British government for embodiment in UK legislation had provided that the High Court would be Australia's final court of appeal. However, the British obtained a compromise. Constitution s 74 provided two possibilities of appeal from the High Court to the Privy Council. There could be an appeal if the High Court issued a certificate that the matter was "inter se", i.e. that it concerned constitutional relations between the Commonwealth and one more States or between one or more States. And there could be an appeal with permission of the Privy Council. The Commonwealth Parliament was empowered to legislate to limit the latter path and it did so in 1968 and 1975; but legislation could only limit, not abolish.

Predictably, the High Court proved reluctant to grant certificates for appeal to the Privy Council. The discretion was exercised only once, in 1912. In 1961, delivering on behalf of the whole Court a brief dismissal of an application for a certificate, Chief Justice Sir Owen Dixon said: "experience shows – and that experience was anticipated when s. 74 was enacted – that it is only those who dwell under a Federal Constitution who can become adequately qualified to interpret and apply its provisions". In 1985, the High Court unanimously observed that the power to grant such a certificate "has long since been spent" and is "obsolete".

Although the path of appeal from the High Court to the Privy Council had been effectively blocked, the High Court could not block appeals from State supreme courts directly to the Privy Council. Nor did the Constitution limit, or provide for legislation to limit, such appeals. The expense of any appeal to the Privy Council in London had been a deterrent: in any year, there had never been more than a handful. Nonetheless, by the 1980s the possibility of appeal from a State supreme court was seen as outdated.

In addition, in 1978 confusion over the relative precedential value of High Court and Privy Council decisions had been introduced when the High Court ruled that it would no longer be bound by Privy Council decisions.

Constitution s 74 has not been amended, and the Constitution cannot be amended by legislation. Nonetheless, s 11 of the Australia Act goes as far as legislatively possible, to make s 74 a dead letter. Thus, for practical purposes, the Australia Act has eliminated the remaining methods of appeal to the Privy Council.