Western Australia v Hamersley Iron Pty Ltd (No 2)

[1969] HCA 54

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies, Windeyer, Owen and Walsh JJ.

WESTERN AUSTRALIA v. HAMERSLEY IRON PTY. LTD. (No. 2)

(1969) 120 CLR 74

28 October 1969

Constitutional Law (cth)

Constitutional Law (Cth)—Privy Council—Appeal from High Court—Question as to limits inter se of constitutional powers of Commonwealth and States—Certificate of High Court—Principles governing grant—Practice—Privy Council (Limitation of Appeals) Act 1968 (Cth)—The Constitution (63 &64 Vict. c. 12), s. 74.

Decisions

October 28.
The following written judgments were delivered:-
BARWICK C.J. We are asked by this application to certify that the question whether s. 101A of the Stamp Act, 1921-1968, of the State of Western Australia, imposes a duty of excise within the meaning of s. 90 of the Australian Constitution is a question proper to be determined by Her Majesty in Council. It should be appreciated at the outset that this is a question as to the limits inter se of the constitutional powers of the Commonwealth and of the States and that it is that precise question involving as it does the interpretation of the Australian Constitution, and in particular of the words "duty of excise" in s. 90 which the applicants seek to have finally determined by the Judicial Committee of Her Majesty's Privy Council rather than by this Court. The decision of that question by the Judicial Committee would not merely be a decision as between these parties but would constitute an interpretation of the Australian Constitution binding for the future upon Australian courts in all cases in which it is relevant. This Court over a long period of years in a series of reported cases has developed an interpretation of a duty of excise within the meaning of s. 90 which is peculiarly Australian, appropriate, as the Court has decided, to the Australian Constitution and the Australian environment in which it functions. To accede to this application is to invite the Judicial Committee to review this course of decision and to decide for itself the interpretation of the Constitution in the relevant respect. Further, no opportunity for review or development of its decision could be afforded to that tribunal in the future unless this Court saw fit again to grant a certificate under s. 74 with respect to the same question. (at p76)

2. The section of the Constitution under which the application becomes necessary is s. 74, which is as follows:

"74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure." (at p77)

3. This section in terms excludes Her Majesty's prerogative to grant special leave to appeal only in those cases which involve the relative constitutional powers of the Commonwealth and of the States unless the Court should consider such a question proper for decision by Her Majesty in Council. Those cases were from the outset thought to involve pre-eminently federal and Australian questions, and in general to be inappropriate for decision by other than Australian judges. Cases involving other aspects of the Constitution were not so excluded from Her Majesty's prerogative to grant special leave to appeal at the time the Constitution was enacted and the decision whether or not the Judicial Committee should entertain them was left to the Judicial Committee itself. (at p77)

4. It is important that this Court's role in relation to the Constitution and, in particular, its duty in relation to the exercise of the power to grant a certificate under s. 74 of the Constitution should be clearly understood. (at p77)

5. This has been fully expressed by Justices of this Court in terms which require no qualification by reason of the experience of the years, and need no re-expression. (at p77)

6. In Deakin v. Webb (1904) 1 CLR 585, at pp 621, 622 , Griffith C.J. in relation to an application for a certificate under s. 74 said:

"In this case the Court is called upon to discharge a very responsible and serious duty . . . . We considered our judgment and have given it, and, by the provisions of the Constitution, our judgment is final and conclusive" (s.73). . . . "The scheme of the Constitution plainly expressed in these sections" (ss. 73 and 74) "is that for the determination of these constitutional questions" (i.e., inter se questions) "this Court is to be the tribunal of ultimate appeal, unless the Court itself is satisfied affirmatively that there is some special reason which would justify it in certifying that the question ought to be determined by the Sovereign in Council. . . . Grave responsibility is cast upon this Court by the Constitution. . . . I agree with Mr. Higgins" (of counsel) "that we should be guilty of a dereliction of duty almost amounting to a breach of trust if we were to decline to accept that responsibility unless we were in a position to say in intelligible language that there was some special reason, capable of being formulated, why the Privy Council was, and why we were not, the proper ultimate judges of the question. That seems to me the only rule that can be applied in determining whether a certificate should be given."

Barton J. said (1904) 1 CLR, at pp 627, 628 :

"Still the term 'any special reason' has not been defined in the Constitution, and I am quite sensible of the danger of endeavouring to lay down any hard and fast rule as to cases such as this Court may hereafter have to deal with. I go only so far as to say that the section, as finally found to be part of the Constitution, was designed, in the first place, to safeguard the right of the people who had framed it, and had voted upon it, to interpret it, and to bring to an end conflicts between Commonwealth and States, by the decision of the Court which that Constitution was calling into existence, and in the same way to deal with cases which arose between two or more States, because in respect of the new self-governing powers constitutional conflicts between two States come within the category of local affairs. Primarily, then, it was intended that this Court should take the responsibility of deciding the class of questions of which that now before the Court is one, while the power of granting a certificate safeguarded that class of cases which was not thought to be adequately protected by the clause as originally framed. It remains to consider whether any special reason has been advanced why the Court should divest itself of the responsibility constitutionally cast upon it, and leave the final determination to the Privy Council. The grant of power to deal with these questions constitutes a burden of which weakness might seek to discharge itself, but which Judges who know their duty will in nowise shirk."

Later, he said (1904) 1 CLR, at p 629:

"I have been through all the reasons, and taking them collectively or separately, they amount to no more than might be given in ordinary cases. The 'special reasons' are not that class of reasons, but something beyond them must be disclosed to entitle the Court to lay down its responsibilities and ask somebody else to take them up."

O'Connor J. said (1904) 1 CLR, at pp 630, 631:

"This section (s. 74) seems to me to place a duty upon this Court in the plainest possible language, and that duty is to see that this Court is the final arbiter of all questions arising out of the Constitution, where the rights of State and State, or State and Commonwealth are concerned, unless we think for some special reason that the Privy Council, and not this Court, should be the final arbiter of the dispute. . . . The will of the people as represented in the Constitution is that we, and we alone, shall have the responsibility of determining the cases under s. 74 which ought to be finally decided by us, and the cases which ought to be decided finally by the Privy Council. In that sense we have been made, not only the interpreters, but the guardians of the Constitution. That is to say, the duty has been placed upon us, not only to see that we interpret the Constitution according to our best judgment, but to take care, also, that, except under very exceptional circumstances, we do not allow the interpretation to fall into any other hands." (at p79)

7. The peculiarly Australian quality of questions as the inter-relationship of the powers of the Commonwealth and the States derived from the Constitution has been the subject of observation in this Court from time to time. It is appropriate in this connexion to refer to the cases of Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 (High Court); (1961) 104 CLR 621 (Privy Council) and Whitehouse v. Queensland (1960) 104 CLR 609 (High Court); (1961) 104 CLR 621 (Privy Council) In these cases, holders of a publican's licence sought to establish that the State Acts imposing licence fees in respect of such a licence were invalid as imposing a duty of excise. (at p79)

8. This Court by a majority of four Justices to three decided that a fee payable upon the grant or renewal of a licence to sell liquor, not being a temporary licence, was not a duty of excise and that the State Acts imposing the fee were in that respect valid. The unsuccessful plaintiffs sought to appeal to the Privy Council from that decision of this Court. The States of Victoria and Queensland were unwilling that the Privy Council should decide what constituted a duty of excise within the meaning of the Constitution and whether the licence fee was such a duty. Accordingly they opposed the attempted appeal to the Privy Council claiming that the cases involved an inter se question within the meaning of s. 74. All the other States and the Commonwealth of Australia intervened in the cases before the Judicial Committee of the Privy Council to support the States of Victoria and Queensland. The Privy Council held that an inter se question was involved and that Her Majesty had no power to grant special leave to appeal. Accordingly the Judicial Committee declined to entertain the appeal. (at p80)

9. Thereupon an application for a certificate under s. 74 was made to this Court in the case of Whitehouse v. Queensland (1961) 104 CLR 635 The Court refused the application. (at p80)

10. In delivering the unanimous judgment of the Court, Dixon C.J., who had formed one of the minority when it was decided that the State Acts were valid, said this (1961) 104 CLR, at pp 637,638:

"There are various considerations which must govern the decision of this Court in exercising its power in a case which comes within s. 74. But no doubt the principle which lies at the root of s. 74 is one which must be kept in mind as possibly paramount. It has been expressed by this Court in judgments before, but it may be very shortly summarized by the statement that experience shows - and that experience was anticipated when s. 74 was enacted - that it is only those who dwell under a federal Constitution who can become adequately qualified to interpret and apply its provisions. The present case is possibly exceptional; the matters which make it exceptional, as compared with the others before this Court involving matters inter se, have been laid hold of by Mr. Bennett in his argument. We have given full consideration to the matters the case involves but we think there is nothing to take the case out of that overriding principle and that it would not be a correct exercise of our very special discretion to allow this case to go before the Judicial Committee freed from the limitations that s. 74 imposes. The certificate will therefore be refused with costs." (at p80)

11. These brief remarks of Sir Owen Dixon express what four Justices, including himself, had earlier said when refusing a certificate under s. 74 in O'Sullivan v. Noarlunga Meat Ltd. (No. 2) (1956) 94 CLR 367 It was there said:

"At bottom the policy of s. 74 is to confine the decision of essentially federal questions to this Court, but at the same time to confide to the Court a discretion which will make it possible to obtain the decision of the Privy Council in a case the features of which make it desirable to do so for some special reason. The provision may be regarded as recognizing that federalism is a form of government the nature of which is seldom adequately understood in all its bearings by those whose fortune it is to live under a unitary system. The problems of federalism and the considerations governing their solution assume a different aspect to those whose lives are spent under the operation of a federal Constitution, particularly if by education, practice and study they have been brought to think about the constitutional conceptions and modes of reasoning which belong to federalism as commonplace and familiar ideas. A unitary system presents no analogies and indeed, on the contrary, it forms a background against which many of the conceptions and distinctions inherent in federalism must strike the mind as strange and exotic refinements. It is also doubtless true that those responsible for the provision which took the shape of s. 74 hoped that an Australian court might find it possible to work out by judicial decision in the course of interpreting the Constitution a body of constitutional law which would give strength and stability to the system" (1956) 94 CLR, at pp 375, 376 (at p81)

12. Since Sir Owen Dixon expressed these opinions of the Court, the Privy Council (Limitation of Appeals) Act, 1968 (Cth), has been enacted and brought into force. Now, special leave to appeal may not be granted by Her Majesty in any case involving federal jurisdiction, of which, of course, constitutional cases are the most notable examples, whether the appeal is sought to be brought against a decision of this Court or of any other Court exercising federal jurisdiction. The passing of this statute has certainly not lessened the force of the citations I have made. Indeed, it proceeds upon the validity of the view that constitutional questions generally, and not merely those inter se of the Commonwealth and States, or of State and State are so peculiarly Australian that they should be decided by Australian judges. In a sense, the passage of the statute has created an anomaly. It brings about a situation in which no constitutional question, other than one inter se, may in any case be decided by the Judicial Committee. Of the constitutional questions which may arise, those inter se have from the beginning been regarded as pre-eminently Australian and generally unsuitable for decision by the Judicial Committee. It remains possible for them to be passed upon by Her Majesty in Council but only on the certificate of this Court under s. 74. As a consequence, the occasion for the grant of a certificate by this Court under s. 74 must, in my opinion, be even more unusual and extraordinary than experience before the passing of the statute has shown it to be. (at p81)

13. The applicants submitted that what the Solicitor-General for Western Australia described as the close division of opinion in the Court in the decision of the case and the doubts which the Court's decision has, as he claimed, raised in the minds of the advisers to the State Crown afforded a special reason within the meaning of s. 74. But, in my opinion, although forcefully and competently advanced by the Solicitor-General, the argument has only to be stated for it clearly to appear that it cannot afford a reason why this Court, as Barton J. put it in Deakin v. Webb (1904) 1 CLR, at p 629 , should "lay down its responsibilities, and ask somebody else to take them up" with the possible consequences to which I adverted at the commencement of these reasons. The present case has been resolved between the parties upon the opinion of the Court ascertained accoding to law. Such doubts as there may be can be resolved in Australia in the ordinary course by the processes of this Court. In my opinion, no reason has been shown why this Court should grant a certificate under s. 74. (at p82)

14. Accordingly, the application should be refused with costs. (at p82)

McTIERNAN J. This application must, in my judgment, be refused. I think that no "special reason" was formulated in argument why the Privy Council would be and why the Judges of this Court were not the proper ultimate Judges of the question in respect of which the application is made: see Deakin v. Webb, per Griffith C.J. (1904) 1 CLR 585, at p 622 (at p82)

2. I agree entirely with the reasons of the Chief Justice for refusing the application. (at p82)

KITTO J. In an action between the State of Western Australia and Hamersley Iron Pty. Limited it has been declared by an order of this Court (1969) 120 CLR 42 that the stamp duty which according to the terms of s. 101A of the Stamp Act, 1921-1968 (W.A.), is payable by the defendant company in respect of payments received by it as the price of iron ore won by it at Tom Price in Western Australia and shipped by it from the port of Dampier in that State to buyers thereof in Japan under f.o.b. contracts for the supply of the same is a duty of excise within the meaning of s. 90 of the Constitution of the Commonwealth. The consequence is that that duty is not validly made payable by s. 101A. (at p82)

2. The decision has no application in this Court as against anyone but the defendant company, because the Court as constituted at the delivery of judgment was equally divided in opinion. Although s. 23 (2) of the Judiciary Act (Cth) enabled an order to be made in the particular case in accordance with the opinion of the Chief Justice it does not make the decision "a precedent which in this Court has authority": Tasmania v. Victoria (1935) 52 CLR 157, at p 184 (at p83)

3. The State now asks the Court to certify under s. 74 of the Constitution that the question which the Court's declaration answered against the State "ought to be determined by Her Majesty in Council". If the certficate were given, an appeal on the question would lie to the Privy Council without further leave, and the decision of their Lordships would be a precedent not only of authority in this Court but of binding force throughout Australia, so long at least as the Privy Council continues to possess jurisdiction to entertain appeals from this Court in respect of questions concerning the meaning of s. 90 of the Constitution. Inevitably, the judgment would determine both the major and the minor premiss, laying down both what is the test for deciding whether a tax is a duty of excise within the meaning of the Constitution and what is the result of applying the test to s. 101A of the Stamp Act of Western Australia and to any provision not relevantly distinguishable in legislation of any of the States. We are invited to certify that a question the determination of which would have these results ought to be decided by the Privy Council instead of being left to be answered by this Court in future litigation. (at p83)

4. Speedy finality of decision has obvious attraction, but the price may be prohibitive. The price here is that the opinion of a bench, or a majority of a bench, of eminent but non-Australian judges shall conclude the question, rendering irrelevant all past and future opinions of Australian judges upon it. This is a price which the Constitution decrees shall not be paid unless the High Court is satisfied that, for some special reason which it is satisfied is compelling, it ought to relinquish the task of working out a solution of the problem and should send it to the Privy Council. No question of the dignity, the prestige, the rights or the priveleges either of this Court or of the Privy Council is involved. The Constitution imposes the responsibility of deciding inter se questions upon the Court as the tribunal which is most likely to be familiar with the concepts and modes of reasoning that belong to Australian federalism and with the conditions of Australian life, and it allows no escape from the duty of discharging that responsibility save where the remission of a question to the Privy Council is considered to be a matter of obligation. (at p83)

5. The resolution of inter se questions is often fraught with difficulty, and unanimity of opinion is by no means always to be expected. The strength of the Constitution is that it does not smother the nation's development in a mass of detailed regulation, but lays down broad lines for application by courts and therefore by logical and imaginative judicial reasoning. As an inevitable consequence, cleavages of opinion will appear from time to time, for men's minds are not made to a pattern; but in the fact that in this Court, as constituted at a particular time, several Justices have dissented from a view that prevails ther is no justification whatever to b e seen, in my opinion, for our passing the burden of final decision to a tribunal which, for all its great distinction, has not had the problems of the Australian Constitution as the constant concern of its members. If so to say is to treat the provision for a certificate in s. 74 as almost a dead letter I do not think that we should be deterred by that. The terms of the section and the nature of the questions to which it applies, relating as they do to the inter-relation of the organs of government within the Australian federation, were enough to ensure from the beginning that a proper case for the High Court to transfer to the Privy Council the task of final elucidation could seldom if ever arise. (at p84)

6. The Solicitor-General of Western Australia, whose argument was as distinguished by its candid recognition of difficulties as by the strength and clarity of its presentation, sought to show that the case is so exceptional that these considerations should not conclude the matter. He rightly pointed out that not only is there at present no preponderance of expressed judicial opinion either way on the problem upon which judgment has been delivered but the question differs from many inter se questions in that discussion of the meaning of the expression "duties of excise" in s. 90 calls for no wide-ranging exploration of constitutional principle and depends upon no esoteric federal conception of a general kind. It must not be forgotten, however, that the expression has had much careful consideration in this Court over a long period of years and that unanimity has been achieved upon at least one point about it, namely that in the Constitution it has a meaning different from that which it possesses according to the vocabulary of revenue law in the United Kingdom: it does not embrace a heterogeneous mass of taxes such as that which the excise authorities in Britain collect, but denotes a tax closely related to the production or manufacture of goods and affecting them as subjects of manufacture of production or as articles of commerce. A certificate in the present case could not be so framed as to require the Privy Council to assume the correctness of this. The counsel who supported the application for a certificate were all content to put aside as unthinkable the possibility that the Judicial Committee might go behind the unanimous judgment in Bolton v. Madsen (1963) 110 CLR 264 and depart from the conclusions that had been reached in the line of decisions which led up to that case; but the fact remains that the question we are asked to certify would throw the whole subject of the nature of a duty of excise, in the sense of s. 90, open for fresh examination by the Privy Council. Thus this case affords an example of, and not an exception from, the proposition which is implicit in s. 74, that the interpretation of provisions in the Constitution imposing limits upon State power, or enabling State power to be limited by an exercise of Commonwealth power, is in general inappropriate for final decision outside Australia. (at p85)

7. It is true that the litigation out of which the present application arises has left an important general question unresolved and its difficulty underlined ; but I am unable to see any justification for concluding that resolution of the question ought no longer to be a responsibility of this Court. (at p85)

8. In my opinion the application should be refused. (at p85)

MENZIES J. Since 1904 when the case of Peterswald v. Bartley (1904) 1 CLR 497 , was decided, this Court has in a series of cases worked towards the definition of the content of the Commonwealth Parliament's exclusive power to impose duties of excise (the Constitution, s. 90). The decisions have not, I think, been uniform, nor have they been arrived at without substantial dissent. They have, nevertheless, contributed towards what, I believe, is a native doctrine, distinct from that developed elsewhere. The most authoritative exposition of that doctrine is to be found in Bolton v. Madsen (1963) 110 CLR 264 , which was the decision of a unanimous Court which adopted the essence of what Kitto J., as one of the majority of the Court, had said in Dennis Hotels Pty. Ltd. v. Victoria (1960) 104 CLR 529 (at p85)

2. Now six years later the Court has divided equally on the question whether s. 101A of the Stamp Act (W.A.) imposes a duty of excise and, in accordance with s. 23 (2) of the Judiciary Act (Cth), the opinion of the Chief Justice that it does, has prevailed. This decision of the Court is not, however, a precedent binding upon the Court in subsequent cases : Tasmania v. Victoria (1935) 52 CLR 157 (at p85)

3. The State of Western Australia, supported by the other States of the Commonwealth, now seeks a certificate under s. 74 of the Constitution that the inter se question whether s. 101A does impose a duty of excise is one which ought to be determined by Her Majesty in Council. (at p85)

4. Such a certificate cannot be given unless the Court is satisfied that for special reasons it should be granted. (at p86)

5. I am satisfied that the reasons for refusing the certificate outweigh the reasons for granting it, which are, in short, that the Court, after its unanimity in Bolton v. Madsen (1963) 110 CLR 264 , is so divided upon a constitutional question of great importance and difficulty giving rise to uncertainty about State taxation powers. The argument was that the time is ripe for the matter to be finally resolved by the Privy Council. (at p86)

6. From the beginning, the Court has regarded s. 74 of the Constitution as constituting it the custodian of the constitutional division of powers between the Commonwealth and the States, so that it is only by the Court's own certificate that the Privy Council can gain jurisdiction in an appeal from a decision of the Court upon any such question. We are bound by principles which have been established and which, I believe, time and national development, including the passing of Privy Council (Limitations of Appeals) Act 1968 (Cth), reinforce. Those principles require this Court, before granting a certificate, to be satisfied of the existence of an extraordinary reason for doing so and they establish that a substantial division of the Court in the decision from which it is sought to appeal is not itself such a reason, even in a case of great constitutional difficulty and importance. To grant the certificate now sought would be to depart from the Court's decision in 1961 in Whitehouse v. Queensland (1961) 104 CLR 635 , that the question whether the statute there in question imposed a duty of excise was a question for determination by the High Court rather than the Privy Council. In that case, as in this, the central question was - What is a duty of excise? (at p86)

7. The overpowering reason for refusing this application may, however, be stated positively. It is that constitutional problems are rarely solved at one blow ; usually in the continuing solution of such problems there is a history of development, if not of change. Constitutional law is not static. Bearing this in mind, it is my opinion that this is not the time to foreclose this Court's working out of an Australian answer to this question of the character of a duty of excise for the purposes of s. 90 of the Constitution, and to commit the decision of this great question to a decision of the Privy Council which would then bind this and other Australian Courts so long as s. 74 stands as part of the Constitution of the Commonwealth or until, upon another certificate granted by this Court, the Privy Council had another opportunity to review its decision. (at p86)

8. Accordingly, I would refuse the application. (at p87)

WINDEYER J. I agree that this application must be refused. In expressing my concurrence in the conclusion of the Chief Justice and the reasoning on which it is based, I shall add only a few observations for myself. (at p87)

2. I cannot perceive in anything which was put before us "any special reason" in this case for the grant of a certificate under s. 74 of the Constitution. I do not think that the case raises any question which we can say "ought to be determined by Her Majesty in Council". The question is no doubt an important question - important to the respondent as well as to the State of Western Australia. It is important too to the other States. They intervened by leave to support the application and, by their counsel, to assure us that for them the question was important and the consequences for State revenues of the decision of this Court were serious. But that does not suffice for the grant of a certificate under s. 74. As Isaacs J. said in Flint v. Webb (1907) 4 CLR 1178, at p 1191 , "The importance of the question cannot constitute a special reason, because every such question is of immense importance . . .". What else is there? The Solicitor-General for Western Australia put several matters for our consideration and put them clearly : but I do not think they amounted to "special reasons". (at p87)

3. It was said a certificate should be given because the decision against which it was sought to appeal was given by a court equally divided in opinion. It chances that, because of the death of Taylor J., that was so. But the decision was the judgment of the High Court in the particular case, given in accordance with law. I do not think that divergent opinions among members of the Court are of themselves a special reason for permitting an appeal from such a decision. I would add that when applications under s. 74 have been refused, as customarily they have been in the past, members of the Court who had dissented strongly from the decision which it was sought to call in question before the Privy Council have on some occasions joined, without any hesitation, in the refusal of a certificate. Illustrations of this in early days are the attitudes of Isaacs J. and Higgins J. in Baxter v. Commissioners of Taxation (N.S.W.) (1907) 4 CLR 1087 , and Flint v. Webb (1907) 4 CLR 1178 Coming to recent times, I mention Whitehouse v. Queensland (1961) 104 CLR 635 - a case which turned upon the meaning of duties of excise in the Constitution. The Court, with one voice, refused a certificate. Dixon C.J., whose words have been quoted by the Chief Justice in this case, was there speaking for a court which had been narrowly divided in opinion on the main question. He, and I, had been of the minority : but no one had any doubt that the question of what, for the purposes of Australian constitutional law, is a duty of excise was not "one which ought to be determined by Her Majesty in Council". (at p88)

4. Then it was urged that in the present case the Court had in some way departed from or overruled its unanimous decision in Bolton v. Madsen (1963) 110 CLR 264 , and that this, taken with its now divided opinions, provided a special reason for permitting an appeal to the Privy Council. Even if the conclusion of this proposition followed from the premise, I would doubt its sufficiency, for the interpretation of the Constitution has not been static ; and even in the Engineers' case (Amalgmated Society of Engineers v. Adelaide Steamship Co. Ltd. (1921) 29 CLR 406 the Court declined to grant a certificate. But in truth the premise of the proposition is, I think, a misapprehension. That the impost in question in Bolton v. Madsen was held not to be a duty of excise does not compel a conclusion that the very different form of impost in this case was not. For myself, I thought that one was and the other was not. I do not myself see that the description or "formulation", as we called it, in the earlier case of a duty of excise was called in question or overturned in this case. All that happened is simply an illustration of the old problem, familiar for both logicians and lawyers, of the application to particular facts of an abstract generic description not triable by any absolute criterion or referable to a definitive norm. Different minds can come to different conclusions in such a case without controverting basic doctrine. I do not think that the view which has prevailed in this case involves any disturbance of doctrine as formulated in Bolton v. Madsen (1963) 110 CLR 264 But even if it did, I consider we ought not to risk the reopening and disturbance of this Court's declared doctrine of what an excise is for the purposes of our Constitution by submitting the question to the Privy Council. (at p88)

5. The Solicitor-General for New South Wales made a reference in his argument to the political background of s. 74 of the Constitution. This is a well-known chapter of compromise in history. Its relevance to the present question escapes me. I cannot forbear from quoting at this point what Higgins J. said in 1907:

"We have no right, in interpreting s. 74, to treat it as containing what we conjecture, or may conjecture, to have been intended, by the Australian Convention, by the Australian voters, by the Australian delegates in London, by the British law officers, or by the Houses of the British Parliament. A certain form of words was agreed to after keen discussion : what is their meaning? They give a definite meaning as they stand. There is nothing ambiguous about them" : Baxter's Case (1907) 4 CLR, at pp 1169-1170

The words of s. 74 seen in their setting have always been regarded as the expression of a policy. As Fullagar J. said in Poulton v. The Commonwealth (No. 2) (1956) 96 C.L.R. 35, at p. 44.:

"That policy is that prima facie all questions which concern the constitutional delimitation of powers - legislative, executive or judicial - as between the Commonwealth and the States of Australia ought to be finally decided by an Australian court." (at p89)

6. That applies to financial relationships between the Commonwealth and the States no less than to other heads of power. Problems that arise under the federal system have ultimately to be met and solved in Australia, within the limits of the Constitution, by the Governments and Parliaments of the Commonwealth and States, by one would hope co-operation rather than confrontation. (at p89)

7. The words of s. 74, charging this Court with a special task, have lost none of their force with the passage of time. In 1901 the provision for a certificate was an exception or qualification of a general right or liberty to approach the Privy Council. That has now been abolished. What in its original setting was an exception to a liberty can be seen now as an exception to a prohibition. But the growth of Australia as a nation certainly does not mean any extension of the circumstances in which a certificate under s. 74 will be granted. Rather I think that it underlines the policy which, from the commencement of the Commonwealth, the requirement of a certificate embodied and reflected - namely that the final adjudication of fundamental constitutional questions should remain with this Court. (at p89)

8. In conclusion I would mention that it is a mistake to approach the question under s. 74 as if special reasons for grant of a certificate in a constitutional case are to be equated with the considerations which ordinarily move a court which has to decide whether or not leave or special leave to appeal should be given in other cases in which that is a statutory requirement. The governing considerations are quite dissimilar, as was pointed out long ago : see e.g. the remarks of Isaacs J. in Flint v. Webb (1907) 4 CLR, at p 1190 and in Baxter's Case (1907) 4 CLR, at p 1149 (at p89)

9. I need say no more in explanation of my concurrence in the decision that this motion be dismissed. (at p90)

OWEN J. I have no doubt that the questions which arose in the case and were decided by this Court are of great importance to all the States and I thought that the submissions made by counsel for the applicant, and by those who appeared for the intervening States, carried much weight. But, as counsel recognized, an applicant for a certificate under s. 74 of the Constitution who must satisfy us that there is "special reason" for the grant of such an application faces a very difficult task which has certainly become no lighter as the years have gone by since federation and Australia has taken its place amongst the nations of the world. If a certificate were granted in the present case the Privy Council would necessarily be required to consider and decide what is a duty of excise within the meaning of s. 90 of the Constitution before embarking upon the question whether the liability to duty imposed by s. 101A of the Stamp Act of Western Australia falls within these words. The first of these matters raises what is to my mind an essentially Australian question of which this Court should now and in the future be the final arbiter. In these circumstances and applying the principle which has been laid down in the earlier decisions of the Court on applications under s. 74, I am of opinion that we should not certify that there is special reason why the questions raised by the present case "ought to be determined by Her Majesty in Council". (at p90)

WALSH J. The Court is asked to certify that the question whether any stamp duty payable under s. 101A of the Stamp Act, 1921-1968, of the State of Western Australia, in respect of payments received by the defendant in a place outside Western Australia from Japanese buyers of iron ore mined by the defendant in that State and shipped from a port in that State to the buyers in Japan, is a duty of excise within the meaning of s. 90 of the Constitution of the Commonwealth is a question which ought to be determined by Her Majesty in Council. (at p90)

2. If the Court should accede to this application the Privy Council would be required to consider and to decide what is a duty of excise within the meaning of s. 90 of the Constitution and would not be concerned merely with an examination of the provisions of the Stamp Act and of the character of the liability imposed by it. In my opinion, no assumptions can properly be made in advance as to the extent to which the Privy Council would accept the correctness of any of the decisions which have been given by this Court as to the meaning of "duties of excise" in s. 90. (at p90)

3. In exercising the power conferred upon this Court by s. 74 of the Constitution to certify that a question ought to be determined by the Privy Council, the Court must decide whether or not it is satisfied that for any special reason the certificate should be granted. (at p91)

4. Having considered the arguments advanced in support of the application I am not persuaded that any special reason for granting it has been shown. Bearing in mind the nature of the question in respect of which the certificate is sought and the principles which have been laid down by the Court in relation to the duty placed upon it by s. 74, I have reached the conclusion that this Court should retain the responsibility for the resolution of the question and should not regard it as one which ought to be determined by the Privy Council. (at p91)

5. In my opinion the application should be refused. (at p91)

Orders

Application for a certificate under s. 74 of the Constitution refused with costs.