''Kirmani v Captain Cook Cruises Pty Ltd (No 2)'',. was a decision of the

High Court of Australia The High Court of Australia is Australia's apex court. It exercises original and appellate jurisdiction on matters specified within Australia's Constitution. The High Court was established following passage of the '' Judiciary Act 1903''. ...

on 17 April 1985 concerning section 74 of the

Constitution of Australia The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the A ...

. The Court denied an application by the

Attorney-General of Queensland The Attorney-General of Queensland is a ministry of the Government of Queensland with responsibility for the state's legal and justice system. The current Attorney-General of Queensland is Shannon Fentiman Shannon Maree Fentiman is an Aust ...

seeking a certificate that would permit the

Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mo ...

to hear an appeal from the High Court's decision in ''Kirmani v Captain Cook Cruises Pty Ltd (No 1)''.

Background

Section 74 of the Constitution established the High Court as the final

court of appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much ...

for Australia, but included the compromise that the High Court could give leave for the Privy Council to hear appeals against High Court decisions, providing that:

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.section 74
Commonwealth of Australia Constitution.

This power was exercised only once, when a certificate to appeal was granted in '' Colonial Sugar Refining Co Ltd v Attorney-General (Cth)'' In 1961 the High Court under Chief Justice Sir

Owen Dixon Sir Owen Dixon (28 April 1886 – 7 July 1972) was an Australian judge and diplomat who served as the sixth Chief Justice of Australia. A judge of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-s ...

said: "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 Commonwealth Parliament was empowered to legislate to limit the appeals to the Privy Council and it did so in 1968 and 1975.

Decision

In ''Kirmani v Captain Cook Cruises Pty Ltd (No 1)'' the Court held by majority that s. 104(3) of the ''Navigation Amendment Act 1979'' (Cth) validly repealed part of "the Imperial Act known as the ''Merchant Shipping Act, 1894'' ... in so far as that Act ... is part of the law of the Commonwealth". The Attorney-General of Queensland, who unsuccessfully intervened in ''Kirmani v Captain Cook Cruises Pty Ltd (No. 1)'' sought a certificate, under section 74 of the Constitution, to permit an appeal to the Privy Council. The High Court unanimously rejected the application, holding that it would never again grant a certificate of appeal, stating

"Although the jurisdiction to grant a certificate stands in the Constitution, such limited purpose as it had has long since been spent. The march of events and the legislative changes that have been effected – to say nothing of national sentiment – have made the jurisdiction obsolete."

Significance

This declaration by the Court and the provisions of the

Australia Act 1986 The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In ...

by both the

UK Parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...

and the

Parliament of Australia The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor- ...

''Australia Act 1986'' (Cth)
/ref> (with the request and consent of the Australian States) have for practical purposes ended all means of appeal from Australian courts to the Privy Council.

References

{{Reflist High Court of Australia cases Australian constitutional law 1985 in Australian law 1985 in case law

Background

Decision

Significance

See also

References