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PUBLIC RECORD OFFICE

Reference :-

PIC.O.885

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

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how little the creation of Australian peerages would be appreciated by the people of the Commonwealth. The.opinion would, we think, prevail Bar the holders of these peerages, while possessing the independence which pnsed feage of their judicial offices would give them, would, in the ease of years, low, as legislators, that closeness of touch with the public affairs of Australia without which they could not be deemed to fully represent the interests of the Commonwealth. Although I am aware that the printary object of appointing such Law Lords will not be to appoint them as legislators, yet I think it would be imposible to pevent the publie from regarding them in that capacity as representative of Australia The measure proposed in that despatch seems likely to create many ditilenkies, and it is doubtful whether, by any such means, a thoroughly effective pul continuous representa- tion of the British Dependencies in the Court of Final Appeal con'd be weared,

You will note the statement in paragraph of that deqatch s to the origin, traditions, and procedure of the two existing Courts of Appeal. While agreeing with the Secretary of State that differences in the matters mentioned are of the greatest historical interest, the Ministers of the Commonwealth do not feel that that fact alone is a sufficient reason for continuing a practice which has led in times past to confusion, and which may lead to the establisliment of differing sets of decisions on similar facts, by two bodies which ought in principle to be of equal weight and authority. They are prepared to attach its due weight to the sentiment referred to in paragraph 7, but they do not consider that alone to be sufficient reason for an unbending adherence to the old practice, while it is open to create a new one alike simpler and more effective than that which has hitherto prevailed. They desire to point out with regard to the suggested difficulties owing to the change of procedure as well as the other reasons just alluded to, that all these arguments might have been advanced with equal force, and, indeed, were advanced when the question of reforming the Supreme Court procedure in England was under discussion in the early seventics. Yet the advantages of the system to be created by the Judicature Act of 1873 were so obvious that public opinion overruled those objections; and insisted on the establish- ment of Courts with an entirely novel system of procedure.

The allusion in paragraph 8 to supposed public feeling in the Colonies in favour of retaining the present practice, under which the final decision on Colonial appeals is the direct act of the Sovereign on the advice of the Judicial Committee, is not quite understood by the Ministers of the Commonwealth. It is the finality of decision by an Imperial Tribunal, and not any method of pronouncement, which a section of Australian opinion has regarded.

It is, of course, known to the Government that during the discussions of the Appellate Clauses of the Constitution Bill,!communications were made from representa- tive bodies in Australia in respect of the preservation of the right of appeal to the Privy Council; but they are of opinion that these representations were made with a desire of preserving to Australians the right of appeal to the highest Court of the Empire, and to place them in no inferior position to subjects in any other part of the King's dominions. The erroneous idea was prevalent that the Appellate Clauses, as originally proposed, were so framed as to deprive Australian subjects of a right which was enjoyed by their fellow-subjects resident in Great Britain and Ireland. Ministers think that this sentiment, or opinion, in the Colonies would be fully satisfied by the creation of an entirely new Tribunal, which might be made the Final Court of Appeal for the whole Empire.

My colleagues agree with me in thinking that it would be wise to urge that the new Tribunal might be invested with powers wider than those now enjoyed by the Judicial Committee. The Constitution of the Commonwealth does not of itself impair the right of appeal from the Supreme Court of a State to the King-in-Council. Many of such appeals are of a character which if brought to the new Tribunal would undoubtedly be considered by it fitter for the decision of the High Court than of any Imperial Court. I refer particularly but not exclusively to cases in which local know- ledge and knowledge of the history of local legislation are essential to proper determination of the subject-matter of the dispute. It is highly desirable that there should be a reserve power in the final Tribunal to remit these matters to the High Court in the case of Australian appeals and to the corresponding Court in the cases of other self-governing Colouies, and I shall be glad if you will urge this matter at the Conference.

In view of the fact that the Conference is intended to be purely consultative, I do not desire to go further in the direction of limiting your freedom of discussion except in the matter which follows. It is regarded by this Government as essential

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that the legislative rights and the judicial power of the Commonwealth should be left intact by any law to be proposed to the Imperial Parliament. overlook these rights in the desire to frame an enactment which might be generally It would be easy to acceptable to the Empire taken as a whole, but the Ministers of the Commonwealth have no authority to make any concessions in either of these respects, and they must ask you to respectfully insist, if need be, that the legislative powers of the Common- wealth and the limits of the judicial power assigned to it under its constitution shall not be a subject of any impairment or dimination in any legislation to be proposed.

I have pleasure in asking you to urge on the Conference the views I have set forth. I shall be glad if you will keep me well informed of the progress of discussion. I shall be pleased to assist you in every way, and shall promptly answer any messages you may send. Without desiring any undue haste in the proceedings, I think it advisable that the Conference lose no time in reaching a definite conclusion.

I have, &c.

The Honourable Mr. Justice Hodges,

C/o the Agent-General for Victoria, London.

EDMUND BARTON.

MINUTE for the RIGHT HONOURABLE the PRIME MINISTER of the COMMONWEALTH of AUSTRALIA.

The Governor-General has to submit, for the early consideration of the Right Honourable the Prime Minister of the Commonwealth of Australia, the subjoined copy of a telegraphic despatch, which has been received from the Secretary of State for the Colonics :--

“His Majesty's Government, on suggestion of Australian Delegates, postponed action last year on measure for strengthening Colonial representation on Judicial Committee of Privy Council till whole question could be considered in consultation with Colonics. They are desiring to deal with matter this Session, and His Majesty's Government wish for assistance of Colonial legal experts to discuss it with Lord Chancellor, Law Officers of the Crown, and myself, and would be glad if Government would select qualified Delegate for purpose. Telegraph as soon as possible name of Delegate proposed and earliest date at which he could reach England with a view to making arrangements for Conference."

HOPETOUN,

February 15, 1901.

your

Governor-General.

MINUTE for his Excellency the Governor-GeneraL.

Mr. Barton presents his humble duty to your Excellency, and desires to acknow. ledge the receipt of your Excellency's Minute of the 15th February, forwarding copy of a telegraphic despatch received from the Secretary of State for the Colonies in reference to a proposal to strengthen Colonial representation on the Judicial Com- mittee of the Privy Council, and will be glad if your Excellency will cause a message. to be sent by cable to the Secretary of State for the Colonies, asking that some outline of the proposals of His Majesty's Government should be furnished, in order that your Excellency's Ministers may be the better able to consider what instructions a Delegate from the Commonwealth should receive in embodiment of their views of the proposal, unless indeed it should be found preferable to leave the matter entirely in the hands of Ilis Majesty's Government without any special representation of the Common- wealth,

EDMUND BARTON,

Prime Minister.

His Excellency

The Governor-General of Australia. February 25, 1901.

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