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Thursday, 18 June 1903

Mr DEAKIN - Existing appeals will be affected if they have not been actually set down for hearing by the Privy Council. This is the chief of the clauses which confer appellate jurisdiction, and honorable members will find in paragraphs (a) and (b) two matters well worthy of their consideration. Whereas the appealable amount in every State except Tasmania is £500, we have lowered the required sum to £300. In sub-paragraph 3 of paragraph (a) we have introduced the power of appeal even when£300 is not involved, provided 'that the status of a person is in question, under the laws which this Parliament has the power to make relating to aliens, marriage, divorce, bankruptcy, or insolvency. Then in the latter part of the clause, honorable members will find a provision which will enable appeals that are now pending to the King in Council, and which have not yet been listed, to be taken to the High Court. This would not deprive the parties of the right of appeal to the Privy Council, but might enable us jn some cases, in which the Commonwealth is a party, to take them before the High Court if necessary. It would also give the other parties a similar option.

Mr McCay - Does the latter portion of the clause apply to paragraphs (a) and (b) ?

Mr DEAKIN - Yes; although I believe it applies nominally only to paragraph (a).

Mr McCay - As a matterof grammar it might be interpreted as applying to (b) only.

Mr DEAKIN - I will look into the matter.

Mr. GLYNN(South. Australia). - I am not quite sure that this clause does not contain a provision that is ultra vires of our powers. In section 73 of the Constitution there is a provision that the High Court shall have jurisdiction, " with such exceptions, and subject to such regulations as the Parliament prescribes, to hear appeals." It also provides -

But no exception or regulation prescribed by the Parliament shall preventtheHigh Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

In other words, while the Parliament may prescribe regulations and exceptions regarding any appellate jurisdiction that it confers upon the High Court, it has no power in relation to appeals which, at the establishment of the Commonwealth, lay from the Supreme Courts to the Privy Council. The honorable gentleman proposes to insert a provision which declares that there shall be no appeal where the amount involved is not more than £300.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - Is not a limitation of £500 imposed by the various States in regard to appeals to the Privy Council?

Mr GLYNN - I cannot recall the conditions which obtain in all the States, but I know that they are not similar. My point, however, is that we cannot prescribe any limitation. It is for the States to do that. In effect this clause declares that there shall be no appeal to the High Court in cases in which the amount involved is less than £300.

Mr L E GROOM (DARLING DOWNS, QUEENSLAND) - It is fixed by an Order in Council.

Mr GLYNN - Yes ; and with an Order in Council we have nothing to do. If there is a prescription in an Order in Council which is applicable to a particular

State, that is the State law, with which we cannot interfere.

Mr Deakin - Why not?

Mr GLYNN - Because we have no power to do so. We are asked to insert a provision which amounts to a limitation, although it is affirmatively expressed. Does not the affirmation of any proposition include the negation of its opposite ? We have no right to insert any such limitation in this clause.

Mr DEAKIN - The point raised by the honorable and learned member for South Australia is one of interest. As the

Author of this particular -clause, I am impressed with any reading which he may have .to offer, but to me its words seem to impose only one restriction upon this Parliament - a restriction against the insertion of any restriction. We do not impose any restriction, but we find that one has been imposed under an Order in Council. That restriction is that the amount involved must not be less than £500. We do not propose to increase that restriction but to decrease it. As I understand the Constitution, we cannot increase the restriction imposed so as to make it more difficult to appeal from the Supreme Court of a State to the High Court than it was, at the time of the passing of this Bill, to appeal from the Supreme Court of a State to the Queen in Council. As long as we remove restrictions, instead of imposing them, it seems to me that we are acting within the powers conferred by section 73 of the Constitution.

Mr. HIGGINS(Northern Melbourne).I understand that clause 35 which has been passed relates merely to appeals from Justices of the High Court, and from the Supreme Courts as courts of first instance. But I apprehend that the clause under discussion is meant to apply to appeals in matters of Federal jurisdiction or otherwise?

Mr Deakin - Yes.

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