it was held that the principle laid down in McCulloch v. Maryland that a state of the Union has no power to impede or control any of the constitutional means to carry into effect federal constitutional powers has no application in construing the Commonwealth Constitution. The leading case in the United States, it was claimed, "adopted a sweeping generalization which sought to decide once and for all those questions which might, by even distant possibility, arise, as well as those which had arisen." 17

The court then referred to some recent decisions in the United States which tend to limit the principle of the McCulloch case and insisted that, while the actual instrumentalities of government of either the Union or of a state cannot be taxed by a state or by the Union, there is nothing in Chief Justice Marshall's decision to prevent the taxation of the property of a person who is merely an agent of Union or state. Reference was then made to the fact that the courts in Canada readily adopted the guidance of American decisions, although the constitutional position of the Dominion legislature in relation to those of the provinces was very different from that which prevailed in the United States.

"There are, however," says the court, "many essential differences between the Constitution of America and the Constitution of both the Dominion of Canada and of the Commonwealth of Australia. The Crown of England has always insisted on maintaining the prerogative right to disallow any legislation, either by way of ordinance of a Governor in Council in a Crown colony, or by Act of Parliament in any selfgoverning colony, and this right has been acted on, not very frequently, it is true, but still many times." 18

Thus the right of disallowance for Australia was cited as evidence of an intention to give effect to a system of government fundamentally different from the American system.

On an appeal of Wollaston's Case to the High Court the principle announced in the case of D'Emden v. Pedder was emphatically reaffirmed.19 In rendering judgment Chief Justice Griffith said:

"They [the judges of the Supreme Court of Victoria] said they preferred to follow the decisions of the Judicial Committee of the Privy Council upon the Constitution of Canada, suggesting that this court had 17 28 V. L. R. 384. 18 Ibid., 381.

19 Deakin v. Webb, 1 C. L. R. 585 (1904).

...

indicated a disposition to show a preference for the American over the English decisions. This is, we think, a somewhat novel mode of dealing with a judgment of a court of final appeal. . . . It is a matter of common knowledge that the framers of the Australian Constitution were familiar with the two great examples of English-speaking federations and deliberately adopted, with regard to the distribution of powers, the model of the United States, in preference to that of the Canadian Dominion.” 20

The scheme of the Canadian Constitution, it is particularly contended, was rejected by the framers of this Constitution, and especially is this true with respect to the distribution of powers between the federal government and the states and as to section 74 which relates to the final interpretation of the Constitution.

"We considered our judgment and have given it" said the court, "and, by the provisions of the Constitution, our judgment is final and conclusive."

The scheme of the Constitution plainly expressed is that for the determination of these constitutional questions this court is to be the tribunal of ultimate appeal, unless the court itself is satisfied that there is some special reason which would justify it in certifying that the question ought to be determined by the Sovereign in Council.21 Canadian decisions such as The Bank of Toronto v. Lambe 22 were held to have no bearing on the case, and the court again cited Marshall's opinion in the Maryland case with the observation that the reasoning of that judgment appeared to be unanswerable. Continuing, Justice Griffith contended:

"In my opinion the principles applicable to the granting by the Judicial Committee of special leave to appeal from this Court or from the Supreme Court of a State are not applicable in this case. Grave responsibility is cast upon this Court by the Constitution. We know historically that that responsibility was only cast upon us after long consideration and negotiation. Various proposals were made, and the establishment of the Commonwealth very nearly fell through in consequence of the differences of opinion upon the point. The final solemn determination of the English Parliament, with the assent of Australia, was that that responsibility should be cast upon the High Court. I agree with Mr. Higgins that we should be guilty of a dereliction of duty almost amounting to a breach of trust if we were to decline to accept that responsibility 22 12 A. C. 575 (1887).

20 1 C. L. R. 604, 606.

21 1 C. L. R. 621, 622.

unless we were in a position to say in intelligible language that there was some special reason, capable of being formulated, why the Privy Council was, and why we were not, the proper ultimate judges of the question." 23

Even more emphatic is the language of Justice O'Connor:

"So strongly do I feel that that duty has been cast on myself as a member of this Court, that I have no hesitation in saying, if we found that by a current of authority in England, it was likely that, should a case go to the Privy Council, some fundamental principle involved was likely to be decided in a manner contrary to the true intent of the Constitution as we believed it to be, it would be our duty not to allow the case to go to the Privy Council, and thus to save this Constitution from the risk of what we would consider a misinterpretation of its fundamental principles." 24

The case did not end here, for it was soon appealed to the Privy Council, and in Webb v. Outrim 25 the court of appeal for the British Empire decided to uphold the state court and thereby overruled the judgment of the High Court in two of its greatest decisions.

"No restriction," says the Council, "on the power of the Victorian legislature in favour of such officer is expressly enacted by the Commonwealth Constitution Act, nor can one be implied on any recognized principle of interpretation applicable thereto." 26

Moreover, the Council denied that the Commonwealth Parliament could take away the right of appeal in this case. The contention that such an act on the part of a state is impliedly forbidden by the Constitution after the analogy of Marshall's reasoning was thus disposed of:

"The analogy fails in the very matter which is under debate. No State of the Australian Commonwealth has the power of independent legislation possessed by the States of the American Union. Every Act of the Victorian Council and Assembly requires the assent of the Crown, but when it is assented to, it becomes an Act of Parliament as much as any Imperial Act, though the elements by which it is authorized are different. . . . The American Union, on the other hand, has erected a tribunal which possesses jurisdiction to annul a statute upon the ground that it is unconstitutional. But in the British Constitution, though sometimes the phrase 'unconstitutional' is used to describe a 26 Ibid., 81.

23

I

C. L. R. 622. 24 1 C. L. R. 631. 25 [1997] A. C. 81.

statute which, though within the legal power of the Legislature to enact, is contrary to the tone and spirit of our institutions, and to condemn the statesmanship which has advised the enactment of such law, still, notwithstanding such condemnation, the statute in question is law and must be obeyed. It is obvious that there is no such analogy between the two systems of jurisprudence as the learned Chief Justice suggests.” 27

In reference to that part of the opinion which declares the United States Constitution a model for the Australian Constitution, Their Lordships say they "are not able to acquiesce in any such principle of interpretation." Neither of these sections (73 and 84) authorizes the Commonwealth Parliament, they claim, to take away the right of appeal in such a case as the one under consideration, nor does any other section directly give such authority.28 For these reasons Their Lordships declined to acquiesce in the judgments rendered by the High Court.

When the issue was again presented to the High Court 29 it was held that the High Court was the ultimate arbiter upon all constitutional questions, unless it was of opinion that the question at issue in any particular case was one upon which it should submit itself to the guidance of the Privy Council, and the court was therefore not bound to follow the decision in Webb v. Outrim, but should follow its own well-considered decision. Chief Justice Griffith said that in D'Emden v. Pedder the court held

...

"that the doctrine laid down in the celebrated case of McCulloch v. Maryland was applicable to the Constitution of the Commonwealth of Australia. . . . In the case of Deakin v. Webb the Court again affirmed that rule, and, adopting the reasoning of the Supreme Court of the United States in the cases of Dobbins v. Commissioners of Erie County and The Collector v. Day, applied it to the case of a State income tax upon the emoluments of Federal ministers and members of Parliament.”3 The Chief Justice continued:

"For the first time in the history of the British Empire a Court has been established as to which it has been declared that no appeal shall be 27 [1907] A. C. 88, 89.

28 Ibid., 91.

29 Baxter v. Commissioners of Taxation, 4 C. L. R. 1087 (1907). See also Commonwealth v. State of New South Wales, 3 C. L. R. 807 (1906), in which a transfer was declared a necessary instrumentality of the Commonwealth for the acquisition of land for public purposes and that the transfer was therefore exempt from state taxation.

30 4 C. L. R. 1100.

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.

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