THE COMMONWEALTH BILL.

Evening Star, Issue 11266, 13 June 1900, Page 5

THE COMMONWEALTH BILL.

THE NEW CLAUSE. Pnai Amottatlon-By Telegraph-Copyright. BRISBANE, June 13. Mr Dickson b«8 cabled to the Premier th* following as the new reading. of cfause 74 of tho Commonwealth BilT:— "No question, however arising, as to the limits, inter se, of tho constitutional powers of the Commonwealth on the one hand, and those of any State or States on the other, shall be capable of final decision by any Couit other than the High Court, except that an appeal may bo permitted to tbo Queon-in-Council from any decision of tho High Court on any uuch question by consent of the Executives of tho Governments concerned, whether parries or not to the litigation ; such consent to be signified in writing by the Governor-General in the caao of the Commonwealth, and by tho Governor in the case of the State." Mr Dickaon says that this amendment leaves too clause almost as obscura is previously. He is aeeking information from Mr Chamkeriain as to how it is intended to operate.

THE COMPROMISE ON CLAUSE 74 Chief Justice Griffith, of Queensland, on being asked to express his opinions on tho fall text of the amended clause 74 of the Commonwealth Bill as cabled by Mr Dickson to the Premier, whilst expressing his willingness to comply with the request, said he had always claimed awl had exercised the right of criticism in renpect to Federation,, while disclaiming any desire to deal with purely political matters. He said, in reply to questions -. By (he draft Bill, as adopted by several of tho colonies, tlie right of direct appeal to the Privy Council from a decision of the State courts in all cases was left unaffected and unrestricted. The only restriction on appeals sought to be impo'sed was on appeals from the High Court in certain specified cases. This restriction was objected to by the Secretary of State for the Colonies as too large, and after discussion he announced his intention of omitting it from the draft Bill. Later, a so-called compromise was announced, which has been understood to be the limitation of the restriction upon appeals to a particular and smaller class of cases. The compromise deais with all questions, howsoever arising, as to the limits of the constitutional powers of the Commonwealth and of the St*tes. These questions will generally arise in controversies as to the validity of acts of the Fedeuil Parliament or State Parliaments. The American phrase is whether the Act in question is " constitutional" or " unconstitutional." In Ca-nada the question is said to be whether the particular Act is "ultra vires." These questions almost invariably arise in actions between private suitors in the local courts, and very rarely arise directly between the Governments" of two States, or between the Federal Government and a State Government. The State courts must decide the questions when they arise, and under the draft Bill, as accepted" by tha people, an appeal lay direct to the Privy Council from their decision on such questions. Bearing this in mind, let us consider the language of the proposed amendment. Let us consider it first literally—- " No such question shall be capable of final decision except by the High Court." But the State courts will have to decide questions when they are raised. Is their decision to be inoperative? If the defeated party does.-not desire to appeal, it must be final as between the parties, and courts of justice decide disputes between parties, and not abstract questions. -Probably what is meant is that all appeals from decisions shall be brought to the High Court alone. If so, it should be so stated, but if this is the meaning, " compromise" amounts to taking away in the most important class of cases the right of appeal which was proTided for by the draft Bill. How important they arc is well shown by an article on the late Lord Watson, recently published, by Mr Haldane, Q.C. So that the so-called compromise, instead of preserving, or rather limiting the proposed restriction upon the existing right of appeal, abolishes the appeal in the most important of all tha cases in which it was preserved under the original BUI. Whether this was wise or not is a matter of policy, but 1 have always supposed that no radical alteration would be made in the draft Bill without consulting the colonial Legislatures. The refusal to grant all they asked, which is what has been supposed to be the attitude of the Secretary of State, is ouite a different thing. liet us consider now the proposed condition of the appeal to the Privy Council from the High Court, which is to be the " consent of the Executive Government concerned." How can a private suitors right of appeal to the Privy Council be made dependent upon the consent of the Government of its own State or of the Com anon-wealth?—-'Argus.'