1372 THE JUDICIARY [PART VI 
the Privy Council. The plan adopted, therefore, is to debar 
the Supreme Courts from ever pronouncing a decision on any 
guestion in which the rights of the Commonwealth and of 
the states, or of the states inter se, are at issue, and thus every 
such case falls to be decided by the High Court, which by 
refusing a certificate for an appeal could make itself the 
final arbiter. That the law is inira vires the Commonwealth 
Parliament appears perfectly clear, and it may be said to be 
not only a sensible and satisfactory solution of a difficulty, 
which brought both the High Court and the Privy Council 
into some degree of contempt, but to be in keeping with the 
spirit of the Constitution, which was intended to reserve to 
the High Court such constitutional cases. 
It is, however, true that a certain amount of confusion is 
still possible. In the first place, the Privy Council is not 
compelled to require that every case shall go to a Supreme 
Court before an appeal can be allowed, and it is still open to 
the Privy Council to give special leave for appeals from any 
Court in a state inferior to the Supreme Court in the exercise 
of federal jurisdiction. The risk of this being done is, how- 
ever, so small that it was deliberately passed over in the new 
federal Act.! Secondly, it is still open to the Privy Council 
to grant special leave of appeal even from the High Court 
with regard to the question whether the matter at issue is 
really one involving the question of the limits infer se of the 
powers of the Commonwealth and of a state or of the states. 
That this should be so is obviously necessary, as the High 
Court cannot claim by law to decide when such a question does 
arise, and it has been so decided in the case of the Attorney- 
General for New South Wales v. Collector of Customs.? 
In 1909 Ontario proposed to limit appeals to the Supreme 
Court and the Privy Council alike. In the latter case all 
appeals of right were to disappear, and appeals by special 
leave to be restricted to constitutional cases, cases involving 
1 Commonwealth Parliamentary Debates, 1907, p. 3758. 
111909] A. C. 345. (The report is misleading—the refusal was because 
the case fell under s. 74 of the Constitution Act, not although.) The High 
Court has had to decide what cases fall within this category; see p. 884.