permitted from its decisions on certain questions unless the Court itself certifies that the question is one which ought to be determined' by the Sovereign in Council. These words cast upon the Court the duty of determining whether the question is such an one or not, and, if it thinks that it is not, it is its solemn duty to say so. . . .

"It appears to us that these considerations show that the High Court was intended to be set up as an Australian tribunal to decide questions of purely Australian domestic concern without appeal or review, unless the High Court in the exercise of its own judicial functions, and upon its own judicial responsibility, forms the opinion that the question at issue is one on which it should submit itself to the guidance of the Privy Council. To treat a decision of the Privy Council as overruling its own decision on a question which it thinks ought not to be determined by the Privy Council would be to substitute the opinion of that body for its own, which would be an unworthy abandonment of the great trust reposed in it by the Constitution. It is said that such a state of things as would follow from a difference of opinion between the Judicial Committee and the High Court would be intolerable. It would not, perhaps, have been extravagant to expect that the Judicial Committee would recognize the intention of the Imperial legislature to make the opinion of the High Court final in such matters. But that is their concern, not ours. For these reasons we are of opinion that this court is in no way bound by the decision of the Judicial Committee in Webb v. Outrim, but is bound to determine the present appeal upon its merits according to its own judgment. In other words, we think that this Court is in effect directed by the Constitution to disregard the unwritten conventional rule as to following decisions of the Judicial Committee in cases falling within sec. 74.

31

The court concluded that the analogy between the Australian and the American Constitutions is perfect. The Privy Council temporarily at least accepted the situation by refusing to allow an appeal.32

The outcome of the controversy was the passage of the Commonwealth Salaries Act of 1907 which granted the states authority to impose a tax upon Commonwealth officers.33

By another act of the Commonwealth in 1907 an effort was made to prevent a similar controversy to that of Wollaston's Case by

31 4 C. L. R. 1102 et passim.

32 [1908] A. C. 214.

33 For the affirmance of this act, see Chaplin v. Commissioner of Taxes for South Australia, 12 C. L. R. 375 (1911).

requiring that state cases involving the construction of the Commonwealth Constitution be appealed directly to the High Court. According to all indications the High Court has won, although it is still claimed that the issue remains an undetermined matter in Australian constitutional law. According to Sir A. B. Keith,

"It is far from easy to predict the future of the doctrine of implied prohibition, for if the three senior judges [Griffith, Barton, and O'Connor] of the High Court are fully convinced of the principle which they have adopted from the first as the basis of the consideration of the Constitution, the two junior judges [Isaacs and Higgins] are evidently, if in different degrees, quite unwilling to admit its validity, and they have declared in open court that they do not consider themselves bound by it." "

A Commonwealth act, it is maintained, is powerless to undo what has been done and it cannot reverse the Privy Council. The Judicial Committee and the High Court each claim to be the final court of appeal on the interpretation of the Australian Constitution.

The principle of implied prohibitions was considered in Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employes Association,35 in which the court applied the principle of previous cases to an attempted interference with the sovereign powers of the states by the exercise of the legislative or executive power of the Commonwealth. The rule laid down in D'Emden v. Pedder that when a state attempts to give to its legislative or executive authority an operation which, if valid, would interfere with the free exercise of the legislative or executive power of the Commonwealth, it is to that extent invalid and inoperative, is reciprocal, says the court. It is equally true of an attempted interference by the Commonwealth with state instrumentalities. The application of the rule is not limited to taxation. A state railway is a state instrumentality within that

34 Keith, "Legal Interpretation of the Constitution of the Commonwealth," 12 J. SOC. OF COMPARATIVE LEGISLATION (N. S.) 120. For a criticism of the judgment and reasoning of the High Court, consult 2 KEITH, Responsible GOVERNMENT IN THE DOMINIONS, 821-37.

35 4 C. L. R. 488 (1906). For the significance of the rule laid down in this case, see Attorney-General for New South Wales v. Collector of Customs, 5 C. L. R. 818 (1908). See also King v. Sutton, 5 C. L. R. 789 (1908), in which the High Court appears to have held that the power to make laws with respect to foreign commerce belongs by implication exclusively to the Commonwealth Parliament.

rule with respect to the attempt to regulate the terms and conditions of the engagement, employment, and remuneration of

servants.

Few decisions as significant as those relating to the immunity of instrumentalities from taxation have been rendered by the High Court, but the trend of constitutional interpretation is shown in some minor cases which may be briefly reviewed. It was very soon determined that the High Court will not decide abstract questions of constitutional law and that a complainant must show that he has personally been injured before he can have the constitutionality of a law tested.36 The provision for the distribution of powers between the states and the Commonwealth was discussed in King v. Barger with the approval of decisions of the Supreme Court of the United States as to the distribution of powers and the insistence that a similar distribution was made in the Constitution Act.37 In the State Railway Servants case the High Court held that the inclusion of disputes relative to employment on state railways was ultra vires as an invasion of the exclusive powers of the state.38

A clear presentation of the function of the High Court is given in the Union Label case 39 wherein the decision was rendered that the portion of the Trade Marks Act of 1905 establishing a workers' mark was ultra vires as involving the state power over domestic commerce and industry. Chief Justice Griffith maintained that "It would indeed be a lamentable thing if this Court should allow itself to be guided in the interpretation of the Constitution by its own notions of what it is expedient that the Constitution should contain or the Parliament should enact. . . . Now, while there is no doubt that within the ambit of its powers the Parliament is supreme, it has no authority whatever beyond that ambit. . . . But it is for this Court to determine, when its interpretation is sought, whether an asserted authority is or is not conferred by the Constitution." 40

36 Bruce v. Commonwealth Trade Marks Label Association, 4 C. L. R. 1569 (1907). See also Attorney-General for New South Wales v. Brewery Employés Union of New South Wales, 6 C. L. R. 469 (1908).

37 6 C. L. R. 41, 67 (1908).

38 The Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employés Association, 4 C. L. R. 488 (1906).

39 Attorney-General for New South Wales v. Brewery Employés Union, 6 C. L. R. 469, 491 (1908).

40 Ibid., 500.

Justice Isaacs held that

"no considerations of expediency or desirability springing from any source whatever are permissible to the Court in determining the limits of an express and substantive power. It is a mere question of dry law as to the extent of the power granted, to be determined on ordinary legal principles." 41

As to the right to decide on the validity of acts, Justice Higgins observed:

"Nothing would tend to detract from the influence and the usefulness of this Court more than the appearance of an eagerness to act in judgment on Acts of Parliament, and to stamp the Constitution with the impress which we wish it to bear. It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armour; and the fact that the question raised in this case has not been argued before any other bench, and possibly may not be argued, or even arguable, on appeal from us, adds to the weight of our responsibility in making sure that there is a cause of action." 42

45

Among the acts or portions of acts invalidated by the High Court are a state license act discriminating against the citizens of other states, 43 several sections of the Australian Industries Preservation Act of 1906,44 an award of a federal court of conciliation and arbitration contrary to a prior award of a state wage board, and the regulation of the Governor General pertaining to the publication of a list of subscribers connected with any telephone exchange." On the whole the court has been rather liberal in its review of the recent acts developing and extending the federal powers as defined in the Constitution.

46

When an issue arose over the Royal Commissions Act of 1902-12 the court could not come to an agreement and availed itself of the power under section 74 to refer a question of constitutional interpretation to the Privy Council. The Council held the act ultra

41 6 C. L. R. 559.

42 Ibid., 590.

Fox v. Robbins, 8 C. L. R. 115 (1909).

Huddart Parker & Co., Ltd. v. Moorehead, 8 C. L. R. 331 (1909).

45 Australian Boot Trade Employés Federation v. Whybrow & Co., 10 C. L. R. 266 and 11 C. L. R. 311 (1910).

46 Commonwealth v. Progress Advertising and Press Agency Co., Ltd., 10 C. L. R. 457 (1910).

vires so far as it purported to enable a Commonwealth Royal Commission to compel answers generally to questions in relation to the intrastate sugar industry, or to order the production of documents relative thereto, or otherwise to enforce compliance by the members of the public with its requisition.47 The Council seemed to recognize an error in its judgment in the Webb case by admitting that in fashioning the Constitution of the Commonwealth of Australia the principle established by the United States was adopted in preference to that chosen by Canada. Recently a Commonwealth land tax assessment act 48 and an act limiting the power of the High Court with regard to awards of the Court of Conciliation and Arbitration 49 were held invalid.

JUDICIAL REVIEW IN THE STATES

As in the United States, the interpretation of the Constitution is not for the judiciary of the Commonwealth alone; it falls upon every court throughout the Commonwealth. Although every court of competent jurisdiction is an interpreter of the Constitution, and the High Court subject to an advisory review by the Privy Council is the authoritative and final interpreter of the Constitution, the state parliaments enjoy a position of independence unknown to the state legislatures in the United States, or to the provincial parliaments in Canada. This arises from the fact that few prohibitions on the states are included in the Constitution and there are no inhibitions arising from general phrases like due process of law and the impairment of the obligation of contracts. Furthermore the doctrine of implied prohibitions, although accepted by the judiciary, has been given by legislative enactment a very limited application.

The nature of judicial review in the states can best be indicated by some of the decisions in Victoria and in New South Wales. In Victoria it was decided as early as 1862 that the Supreme Court had power to examine the validity of an act of the state parlia

47 Attorney-General for Commonwealth of Australia v. Colonial Sugar Refining Co., Ltd., 17 C. L. R. 644 (1913). For a criticism of the action of the Privy Council in this case, see W. J. Brown, "The Nature of a Federal Commonwealth," 30 L. QUART. REV. 301.

48 Waterhouse v. Deputy Federal Commissioner of Land Tax, 17 C. L. R. 665 (1914). "The Tramways Case, 18 C. L. R. 54 (1914).