over which, outside the reservations to be found in the Constitu- H. C. OF A. tion itself, the Imperial authority does not assume or exercise control. All these questions when pronounced upon by the Supreme federal tribunal constituted and sitting in Australia are declared by sec. 74 to be free from the intervention of even the Royal prerogative. Unless and until the High Court certifies that a question, determined by it and included within the terms of the section, ought to be decided by the Privy Council, which, however eminent, is nevertheless a tribunal constituted and sitting outside Australia, the Constitution insists that it ought not to be and must not be so decided, and until that event occurs-if it ever should occur-the supreme law of the Empire knows no judicial authority in relation to that question superior to this Court. Provided only that the cause answers the description of a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or of two or more States, it matters not how the question arises, whether as to parties or procedure, whether singly or in conjunction with other questions, whatever the nature of the dispute, whatever the amount involved, whether it concerns the affixing of a penny stamp to a document, or the control and destination of the river waters of the Continent. In all such cases the decision of the High Court, either in the exercise of its original or its appellate jurisdiction, is absolutely final and beyond the power of revision by any tribunal but itself. The argument that endeavours to place on the same level as these provisions of sec. 74 of the Australian Constitution ordinary legislative restrictions upon appeals such as those from the County and Divisional Courts-legislation interpreted in cases of such high authority as Lane v. Esdaile (1) and Ex parte Stevenson (2) to be a check on unnecessary and frivolous appeals, and in Ex parte Gilchrist (3), as meaning that if the decision is one of principle and new, leave should be given-entirely overlooks, not merely the striking difference of language, but still more the vital distinction of aim, purpose and effect. (1) (1891) A.C., 210. (2) (1892) 1 Q.B., 394. (3) 17 Q.B.D., 521, at p. 528. 1907. BAXTER v. COMMIS SIONERS OF (N.S.W.). TAXATION Isaacs J. The opening words of sec. 74 are in the negative: "No appeal shall be permitted to the Queen in Council from a decision of the High Court." This makes the Privy Council incompetent to hear such an appeal, just as in the North British Railway Co. v. Wauchope (1) Lord Westbury L.C. said the House of Lords was by very similar words not competent to hear that appeal. Much of the argument of respondents in both cases rested upon their construction of the word "decision." They contended for the narrow interpretation, that is to say, they regarded it as equivalent to "judgment, decree, order or sentence "—in other words as the formal order whatever name it bears, working out the final details of the cause between the immediate parties, providing for and directing the specific acts or forbearances necessary in the opinion of the Court to do justice as between the particular litigants, and not operating beyond them either in its direct effect or its indirect authority. They contend, therefore, that it does not mean the declaration of the law as affirmed by the Court. Having gone so far, counsel necessarily carried his submission to this point, that "decision" meant the final judgment of the Court in any case where the prescribed question was raised between the parties, no matter how it was decided, and no matter whether that was the sole question or one with many others of a totally different character, and counsel maintained that it was quite immaterial upon which of those many questions the judgment ultimately rested. An unsuccessful party before the High Court could not appeal to the Privy Council even by special leave of their Lordships, it was said, if the constitutional point were raised and determined, even though that point were determined in his favour, and if his only cause of dissatisfaction were some ordinary point of mercantile law, or the construction of a Statute such as the Income Tax Act of a State. Before the unsuccessful party could appeal in such a case on the real decision he questioned, he must, it was contended, obtain from the High Court the certificate required by the 74th section, though no one desired or intended to challenge the decision upon the constitutional question. (1) 4 Macq. H. L. Cas., 352. 1907. BAXTER V. COMMIS Such a construction cannot, in my opinion, be seriously con- H. C. OF A, templated. It would follow from that as a necessary consequence that, even if the High Court were now to follow in favour of the respondents the Privy Council decision in Outtrim's Case, but founded its judgment on other points in favour of the appellants, the case according to respondents' argument would still be unappealable on those other points without a certificate as to the constitutional point, a certificate which, under the circumstances, would be absurd in the extreme. "Decision of the High Court upon any question," in this section means, in my opinion, what the Court decides to be the law with regard to that question; what it holds to be the proper answer to that particular question. That is the sense in which the word "decision" is frequently used by the House of Lords and the Privy Council; as in Ridsdale v. Clifton (1); Read v. Bishop of Lincoln (2), and London Street Tramways Co. v. London County Council (3). A case before the High Court may present many questions for decision. If it includes one of the nature indicated by sec. 74, the decision upon that question is the only one to which the special provision applies. It may be that it is impossible to appeal from that for the reason that the party, against whom the decision on that question passes, succeeds by reason of some other point-as if the defendants (appellants) here were to succeed only on the construction of the Income Tax Acts, or on a question of fact as to amount of income. But assuming a party is otherwise in a position to appeal from an adverse decision which forms the sole ground, or one of the grounds, for judgment against him, then the special provisions of sec. 74 intervene to deprive him of that right or to except from his general right the decision on the specific point of constitutional conflict, unless he obtains the required certificate. The argument ab inconvenienti founded upon the possibility of two conflicting interpretations of the Constitution was strenuously pressed upon us. It is an argument of great weight if addressed to lawmakers; or even to a Court, if words be of doubtful meaning. But they are not so here: I know of no (2) (1892) A.C., 644, at pp. 654, 655. (3) (1898) A.C., 375, at p. 379. (1) 2 P.D., 276. SIONERS OF TAXATION (N.S. W.). Isaacs J. 1907. BAXTER บ. COMMIS SIONERS OF (N.S.W.). ΤΑΧΑΤΙΟΝ Isaacs J. H. C. OF A. clearer words in the Constitution, or words having a more obvious purpose. Sec. 74 is one of the pillars of the Constitution. Unless it stands firm, much of the true meaning of that document is lost. In the Constitution itself can be discerned as a matter of legal construction the expectation that no conflict of final interpretation would arise, because the State Courts, through whom an alternative channel of construction is possible, were not at once deprived of jurisdiction to interpret the Constitution; still the possibility of conflict was guarded against by empowering the national legislature in case of need to close that channel. While the Constitution lasts in its present form, nothing however can alter the finality of a decision of the High Court upon this class of question. That is a fixed principle, embedded in the Constitution as a fundamental fact, capable of extension in its application but not of restriction, and to my mind should be the governing consideration in such a case as the present. The Court is not bound to yield to the views of the Judicial Committee on this branch of the Constitution. But we have been appealed to, in the first case, to accept those views however strongly we disagree with them, because it would tend to consistency of interpretation, and because the Privy Council, being the body to which other questions are appealable, and even these questions if a certificate is given, it would be in some undefined way the desirable course to pursue. Unity of interpretation, if lawfully obtainable, is, of course, much to be desired. But adherence to that rule is by no means universal. In Leask v. Scott (1), the English Court of Appeal declined, even on a question of mercantile law, to follow a decision of the Privy Council. And this is surely the right course to pursue by any Court which is not legally subject to authoritative correction by the other tribunal, and which has a distinct opinion contrary to the decision cited. The 74th Every Court within the ambit of its functions is the delegate of the Sovereign and has its own duty to perform. section has placed a very special duty upon this Court. In framing the Constitution, the creation of the High Court was made an integral part of the federal structure, and while appor (1) 2 Q.B.D., 376. tioning the powers to the several authorities as definitely as circumstances would permit, this Court was made the federal arbiter in all disputes coming before it, regarding the apportionment, unless for special reasons it considered that the Privy Council should be appealed to. To this Court was committed, not only the function of decision in the first instance, but the duty also of looking over and beyond the strife of the parties themselves, and of judging if the public interests would be better served by remitting the controversy to His Majesty in Council for determination, which should for all times bind this Court as the supreme judicial organ of the Commonwealth, and through it the whole Australian people. But we are now asked by the respondents to lay aside all these serious considerations and to regard only the circumstance that by another avenue a decision has in fact been reached which does not accord with a former decision of this Court. We are invited to say because that has happened, although without the opinion of this Court, that the Privy Council ought to decide such a question, and in the face of express opinion of this Court in Deakin v. Webb (1), that it ought not, this High Court should now ignore its constitutional duty, virtually for this purpose treat the 74th section as repealed, and accept without question the contrary opinion of the Privy Council. the My answer to that is this. The possibility or existence of a diversity of judicial opinion which can only last during the pleasure of the Commonwealth Parliament as to these questions --and similarly (subject only to the requirement of reservation for the Royal Assent) with regard to all other constitutional questions cannot justify this Court in abandoning the trust with which, as it appears to me, it has been by law invested. It has no discretion to sacrifice or weaken any part of the Constitution. The 74th section is as much a part of the Constitution as any other, and if its true meaning be, as I hold it is, that unless for some most exceptional reason which does not now present itself, and one to be certified according to law when it does, it is the judgment of this Court alone which, in the matters we are considering, is intended to bind the Commonwealth and States (1) 1 C.L.R., 585. H. C. OF A. 1907. BAXTER v. COMMIS SIONERS OF (N.S.W.). TAXATION Isaacs J. |