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13 - The Privy Council and the Constitution

Published online by Cambridge University Press:  07 October 2011

Sir Gerard Brennan
Affiliation:
University of Technology, Sydney
H. P. Lee
Affiliation:
Monash University, Victoria
George Winterton
Affiliation:
University of New South Wales, Sydney
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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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Publisher: Cambridge University Press
Print publication year: 2003

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