Commonwealth v Bank of New South Wales

The Commonwealth sought to appeal to the Privy Council against decisions of the High Court of Australia concerning the validity of certain provisions of the Banking Act 1947 (Cth). The High Court had declared a section of the Act invalid on the grounds that it contravened section 92 of the Constitution, which guarantees freedom of trade, commerce, and intercourse among the States. The Commonwealth attempted to appeal without a certificate from the High Court, arguing that the appeal concerned the interpretation of section 92 and not a question as to the limits inter se of the constitutional powers of the Commonwealth and the States.

The central legal issue before the Privy Council was whether an appeal lay to the Privy Council from the High Court's decision without a certificate, given that the High Court's order did not explicitly state it was based on a question concerning the "limits inter se" of Commonwealth and State constitutional powers. The Commonwealth contended that the High Court's judgment, which found the section invalid due to its contravention of section 92, did not necessarily involve an "inter se" question, and that the appeal was therefore permissible.

The Privy Council held that an appeal from the High Court to the Privy Council concerning the validity of a Commonwealth law, where that law is challenged on grounds including its contravention of section 92 of the Constitution, requires a certificate from the High Court if the decision involves or touches upon the limits inter se of the constitutional powers of the Commonwealth and the States. Although the High Court's order did not explicitly state it was founded on an "inter se" question, the reasoning of the High Court judges indicated that the validity of the section under section 92 was intrinsically linked to the scope of Commonwealth legislative power in relation to banking and the States' residual powers. Therefore, the Privy Council concluded that the appeal could not proceed without the necessary certificate.