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PERTH. SATURDAY, JUNE 16.
THE HIGH COURT AND THE
STATES.
Last week's income-tax decision is of
extreme interest, not only to the Fede-
ral service, but to everyone. The High
Court, though thoroughly Federal in
tone, is the ultimate bulwark of the
States. Of all the States Western Austra-
lia is in every sense the most aloof. Im-
perfect is the sympathy we have so far
received from our neighbours in the
Commonwealth. Deep is their ignorance
of our conditions. The Premiers' Con-
ference was about as cordial as an ice
chest. Federal feeling has been illusr
trated in the unhappy fate of the Trans
Australian Railway Survey Bill in two
Federal Parliaments. The normal atti-
tude of the Commonwealth" administra-
tion is seen in the post-office exten-
sions. But there is a third power that
site in high arbitrament over the des-
tinies of Australia, since it is vested
with wide powers by the Constitution
Act. The Judiciary of the Common-
wealth offers some constitutional refuge
from the caprices of the administration
and the vagaries of the legislatmc. The
value of such a proviso has been often
seen in the United States. At present
the argument for the absolute main-
tenance of State rghts there is being
pressed home with vigour. That all the
forces making for tbe centralisation of
American life at Washington should
have been held at bay so long, is a tri-
bute to the exact legality of the Su
I preme Court Bench of the Republic.
i The smaller States of the Common-
wealth can rely on nothing but a similar
rigidity in our High Court for the pre-
servation of the inalienable rights which
the colonies did not hand over to the
Commonwealth on its formation in 1901.
The conduct of the Full Court is thus
of far more than merely legal interest.
Such a decision as that arrived at a
few days ago on the income tax appeals
deserves the most careful scrutiny un-
der every aspect. The question is not
whether it is fair; for no one can'seri-
ously argue that a Federal servant
should be so privileged as to he exempt
from the State iucomc tax. Nor is it
whether the decision is a fulfilment of
Federal intentions end aspirations ; for
that is to place politics ou the judg-
ment seat. All that concerned the
Bench was the more direct isstje-wa«
the income tax legal and constitutional
in its application¡ to Federal civil ser-
vants/ By a majority decision of the

High Court the tax was declared in-
operative so far as these lucky mortals
are concerned. The States were refused
permission to carry their appeals still
further. In the Outtrim case, practi-
cally identical in essence, the Privy
Council had maintained the State
claims. The High Court has now de-
cided that there should be no risk of
such a reversal of its verdict, bj unani-
mously refusing a certificate under sec-
tion 74 granting the right of appeal.
All five judges were at one in maintain-
ing the dignity of the High Court as
the final arbiter in the case, though
only the three seniors had been clear in
protecting the Federal service from the

tax.

The ease will scarcely end here. Aus-
tralia's passion fur uniformity in legis-
lation and the abolition of privileged
classes, will not finally be content to
see the Federal few go untaxed among
the many who pay under protest. In
addition, the Privy Council has given a
decision in the Outtrim case which prac-
tically encourages the State contention.
With the High Court committed to one
view and the Privy Council to the

other, a condition of absolute ambiguity ,
prevails. Very significant is the sug-
gestion given by the members of the
High Court that some way should be
found round theil' decision. For in-
stance, the Chief Justice thought "that
the Federal Parliament could make its
grants of salary to its officers subject to
the right of the States to tax." Mr.
Justice O'Connor said that "circum

stances might arise which would make
it right in the public interest that the
final interpretation of the Constitution
should be left to the Privy Council in '
this matter." Mr. Justice Higgins1
"thought that the position was an in-
tolerable one, pregnant with mischief,

but that argument did not afford rea-,
son for granting a certificate under

section 74." It íb worthy o'f remark that j

the decision, in so far as it exempted'
Federal officers, was come to by a
majority composed of the seniors on the

Full Court Bench-that is, by the Chief j

Justice and by those who have longest
been under the influence of his keen ap-
prehension, acute intellect, and domin-
ating will. The latest appointments, in
Mr. Justice Isaacs and Mr. Justice
Higgin», perhaps from having formerly
regarded the case from the Victorian
standpoint; perhaps from their only
partial acclimatisation to the Full
Court; and perhaps from greater indi-
viduality, considered the Federal ser-
vant as quite a proper prey for the In-
come Tax Commissioners. The practica1
point seems, accordingly, capable of
solution. What is much more important,
in a constitutional sense, is the deliber-
ate attitude o'f independence of every
outside power assumed by all the
judges.

Tlie whole question of the appeal« in
cases relating to the Constitution of the
Commonwealth and the States depends

on section 74 of the Constitution I
of which the important paragraph
reads- . j

No appeal símil be permitted to the Queen

fn-Counoil from a decision of the High
Court upon any question, howeoever aris-
ing, as to the limits inter te of the con-
stitutional powers of the Commonwealth
and thoBe of any State or States, or a«
to the limits inter se of the constitu-
tional powers of any two or more States,
unless the High Court shall certify that
the question is one whioh ought to be
determined by Her Majesty in Council.

The right thus given is read by" the
Chief Justice as showing that "the in-
tention of the British Legislature was
to substitute for a distant Court of un-
certain composition, imperfectly ac-
quainted with Australian conditions,
unlikely to be assisted by counsel fami-
liar with those conditions, and whose
decisions would be rendered .many
months, perhaps years, after its judg-
ment had been invoked, an Australian
Court, immediately available, constant
in its composition, well versed in Aus-
tralian history and conditions, Austra-
lian in its sympathies, and whose judg-
ment voulu be rendered as occasion
arose, which would form a working
code for the guidance of the Common-
wealth. Therefore, the High Court
' thought that it was bound to determine

the present appeal upon its merits, ac-
cording to its own judgment." A Privy
Council decision was thus of interest
rather than of authority. While Mr. Jus-
tice Higgins "considered that itfwasthe
duty of the High Court to accept His
Majesty's opinion as final as expressed
in the case of Webb v. Outtrim," the
Chief Justice had the*courage to declare
that "the furthest the Court would go

was to Bay, without admitting it, that
the decision of the Privy Council on a
point of law which was directly in'con-
flict with the decision* of the High
Court might be sufficient reason for in-
viting the High Court to review its pwn
decision." Notwithstanding the awk-
ward dilemma created in the present
instance, the general stand unanimous-
ly taken by the High Court as to clause
74, seems good. It should prevent any
such calamity in the constitutional
sphere as occurred iu ecclesiastical mat-
ters some years ago, when the case of
the Free Church of Scotland was car-
ried from the Scottish Judges, with
their Scots' law verdict of common
tense, to the House of Lords, whose ra-
tified legal finding, in consonance with

English rather than Scottish law, gave
the Wee Frees all the property, and ne-
cessitated fresh legislation. The Higft
Court has shown a unanimous deter-
mination to rely on itself. Of even
greater importance is the question
whether the High Court will be equally
rigid in excluding political ideals in any
conflict between the Federal and State
spheres of action, and conserving the
rights of the States whose privilege of
appeal to London it has 60 sharply
limited.

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