Appeals to the Privy Council High Court of Australia

high court building

the issue of appeals high court united kingdom s judicial committee of privy council significant 1 during drafting of constitution , continued significant in years after court s creation. wording of section 74 of constitution put voters in various colonies there no appeal privy council in matter involving interpretation of constitution or of constitution of state, unless involved interests of other dominion.

section 74 of constitution, enacted imperial parliament, prohibited appeals on constitutional matters involving disputes limits inter se of commonwealth or state powers, except high court certified appropriate appeal determined privy council. did once: in 1912 case of colonial sugar refining co ltd v attorney-general (cth) when court equally divided. after case, in privy council refused answer constitutional questions put it, high court never certified inter se appeal. indeed, in case of kirmani v captain cook cruises pty ltd (1985), court said never again grant certificate of appeal.

in general matters, however, section 74 did not prevent privy council granting leave appeal against high court s wishes , council did often. in cases council acknowledged australian common law had developed differently english law , did not apply own principles (for example, in australian consolidated press ltd v uren (1967), or in viro v queen (1978)), using legal fiction stated different common law can apply different circumstances. however, in other cases, privy council enforced english decisions, over-ruling decisions high court. in parker v queen (1963), chief justice sir owen dixon led unanimous judgment rejected precedent of house of lords in dpp v smith saying, shall not depart law on matter have long since laid down in court , think smith s case should not used in australia authority @ ; following year privy council upheld appeal, applying house of lords precedent.

section 74 did provide parliament make laws prevent appeals privy council , did so, beginning in 1968, privy council (limitation of appeals) act 1968, closed off appeals privy council in matters involving federal legislation. in 1975, privy council (appeals high court) act 1975 passed, had effect of closing routes of appeal high court. appeals high court privy council theoretically possible in inter se matters if high court grants certificate of appeal under section 74 of constitution. noted above, high court indicated in 1985 not grant such certificate in future , practically future high courts maintain policy. in 1986, passing of australia act both uk parliament , parliament of australia (with request , consent of australian states), appeals privy council state supreme courts closed off, leaving high court avenue of appeal.

thirteen high court judges have heard cases part of privy council. sir isaac isaacs judge have sat on appeal high court, in 1936 after retirement governor-general. sir garfield barwick insisted on amendment privy council procedure allow dissent, exercised once. appeals related decisions other commonwealth countries, although included appeals state supreme court.