Book contents
- Frontmatter
- Contents
- List of Cases
- List of Commonwealth Constitution Provisions
- List of Statutes
- List of Contributors
- Preface
- Introduction: The Commonwealth's Constitutional Century
- 1 The Emergence of the Commonwealth Constitution
- 2 The Engineers Case
- 3 The Uniform Income Tax Cases
- 4 The Bank Nationalisation Cases: The Defeat of Labor's Most Controversial Economic Initiative
- 5 The Communist Party Case
- 6 Fitzpatrick and Browne: Imprisonment by a House of Parliament
- 7 The Boilermakers Case
- 8 The Race Power: A Constitutional Chimera
- 9 The Double Dissolution Cases
- 10 1975: The Dismissal of the Whitlam Government
- 11 The Tasmanian Dam Case
- 12 The Murphy Affair in Retrospect
- 13 The Privy Council and the Constitution
- 14 Cole v Whitfield: ‘Absolutely Free’ Trade?
- 15 The ‘Labour Relations Power’ in the Constitution and Public Sector Employees
- 16 The Implied Freedom of Political Communication
- Index
13 - The Privy Council and the Constitution
Published online by Cambridge University Press: 07 October 2011
- Frontmatter
- Contents
- List of Cases
- List of Commonwealth Constitution Provisions
- List of Statutes
- List of Contributors
- Preface
- Introduction: The Commonwealth's Constitutional Century
- 1 The Emergence of the Commonwealth Constitution
- 2 The Engineers Case
- 3 The Uniform Income Tax Cases
- 4 The Bank Nationalisation Cases: The Defeat of Labor's Most Controversial Economic Initiative
- 5 The Communist Party Case
- 6 Fitzpatrick and Browne: Imprisonment by a House of Parliament
- 7 The Boilermakers Case
- 8 The Race Power: A Constitutional Chimera
- 9 The Double Dissolution Cases
- 10 1975: The Dismissal of the Whitlam Government
- 11 The Tasmanian Dam Case
- 12 The Murphy Affair in Retrospect
- 13 The Privy Council and the Constitution
- 14 Cole v Whitfield: ‘Absolutely Free’ Trade?
- 15 The ‘Labour Relations Power’ in the Constitution and Public Sector Employees
- 16 The Implied Freedom of Political Communication
- Index
Summary
Constitution section 74
The Founding Fathers of the Australian Constitution realised that unless the jurisdiction of the Privy Council were restricted by statute, Australian appeals, including appeals in which questions under the proposed constitution for an Australian Federation might arise, would be finally determined in London. Before the National Australasian Convention of 1891, Andrew Inglis Clark (who became chairman of the Judiciary Committee) circulated a draft constitution which proposed that ‘the Judgment of the Supreme Court shall in all cases be final and conclusive; and no appeal shall be brought from any Judgment or Order of the Supreme Court to any Court of appeal … by which appeals or petitions to Her Majesty in Council may be ordered to be heard’.
A draft Constitution, prepared under the guidance of Sir Samuel Griffith during the Easter cruise of the Lucinda, was adopted by the Convention. It provided that the appellate judgments of the ‘Supreme Court of the Commonwealth’ were to be ‘final and conclusive’, subject to a qualification. The qualification was that ‘the Queen may in any case in which the public interests of the Commonwealth or of any State or of any other part of the Queen's Dominions are concerned, grant leave to appeal to Herself in Council against any judgment of the Supreme Court of Australia’.
When the 1897 Convention resumed consideration of a Bill for a federal constitution, a similar provision was inserted in cl. 73 and the Supreme Court acquired the title of the High Court.
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- Chapter
- Information
- Australian Constitutional Landmarks , pp. 312 - 334Publisher: Cambridge University PressPrint publication year: 2003
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