O'CONNOR, J. and ISAACS, J.-That inconvenience can be removed by the Commonwealth Parliament exercising its powers under section 77 (II.) of the Constitution. Per GRIFFITH, C.J.-That inconvenience can also be removed by the Commonwealth Parliament making its grants to its servants subject to the right of the States to tax them. Per HIGGINS, J.-Quaere, whether, if a State income tax on salaries of Federal servants is invalid under the Constitution, the Commonwealth Parliament can validate such a tax: Flint v. Webb, F.C., 4 C.L.R., 1178; special leave to appeal refused by Privy Council, (1908) A.C., 214; 5 C.L.R., 398.

In the case of the Attorney-General of the Commonwealth v. The Colonial Sugar Refining Co., (1914) 15 C.L.R., 182, the Judges (the Chief Justice and BARTON, ISAACS and HIGGINS, JJ.) were equally divided in opinion; that of the Chief Justice prevailing, and a certificate was granted in the following form ::

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Pursuant to section 74 of the Constitution this Court doth certify that, so far as the question whether the Parliament of the Commonwealth has power to make laws for the compulsory examination of witnesses by Royal commissions touching matters which are not within the ambit of the existing legislative powers of the Commonwealth, that is to say, such powers as may now be exercised without an amendment of the Constitution under the provisions of section 128, is a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, the question is one which ought to be determined by His Majesty in Council": 15 C.L.R., at p. 234.

Frontier of Commonwealth Power.

In the Builders Labourers' Case, 18 C.L. R., 224, the President of the Commonwealth Conciliation and Arbitration Court, had made an award as to the hours of work, wages, conditions, work done in holidays and other matters concerning the terms of employment of builders' labourers throughout Australia. An application was made to the High Court to prohibit the enforcement of the awards on the ground that there was no industrial dispute extending beyond · the limits of any one State. The High Court held that there was such a dispute and refused to prohibit, also declined to grant a certificate for leave to appeal to the Privy Council. Notwithstanding this refusal the employers went to the Privy Council. A preliminary objection was taken that the appeal was incompetent in the absence

of a certificate. The Privy Council refused to entertain the appeal. They held that a decision by the High Court that a particular dispute was a dispute extending beyond the limits of one State and that in respect of it the President of the Commonwealth Court of Conciliation and Arbitration had, under legislation of the Commonwealth passed pursuant to their constitutional powers, jurisdiction to make an award, is a decision upon a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States. Therefore, under section 74 of the Constitution the Privy Council had no jurisdiction to entertain an appeal from such a decision in the absence of a certificate by the High Court pursuant to that section.

Their Lordships considered that the High Court had decided first, that the dispute before them was one extending beyond the limits of one State; and secondly that the President had jurisdiction to make his award under the legislation of the Commonwealth passed pursuant to its constitutional powers. The High Court decided that the frontier of the Commonwealth power reaches in this case into the State, and it therefore followed that the State has not exclusive, if any, power in this case. This appeared to their Lordships to be a question as to the limits inter se of the several powers, however much or little the Commonwealth may be required to conform to State laws or State awards, and however much or little the State may impose laws upon its subjects: Jones and Others v. The Commonwealth Court of Conciliation and Arbitration and the Attorney-General for the Commonwealth, (1917) App. Cas., at p. 528; 24 C.L. R., at p. 396.

Original jurisdiction of High Court.

75. In all matters--

(i.) Arising under any treaty :

(ii.) Affecting consuls or other representatives of

other countries:

(iii.) In which the Commonwealth,133 or a person suing or being sued on behalf of the Commonwealth, is a party :

(iv.) Between134 States, or between residents 135 of different States, or between a State and a resident of another State:

(v.) In which a writ of Mandamus 136 or prohibition or an injunction is sought against an officer of the Commonwealth :

the High Court shall have original jurisdiction.

The words of section 75 (III.) giving the High Court original jurisdiction in all matters in which the Commonwealth is a party are sufficient to give the High Court original jurisdiction in criminal prosecutions for violation of the laws of the Commonwealth in which the Attorney-General for the Commonwealth is the prosecutor. If, however, this view is incorrect the jurisdiction of the Court is unquestionably settled by the Judiciary Act (1903) as amended by the Judiciary Act, No. 4 of 1915, section 3, which amends section 30 of the Principal Act by adding words conferring jurisdiction on the High Court in trials of indictable offences against the laws of the Commonwealth; and by the Crimes Act, No. 12 of 1914 and the Crimes Act, No. 6 of 1915, which confers similar jurisdiction.

The Constitution, section 75 (III.) provides that the High Court shall have original jurisdiction in all matters in which the Commonwealth is a party. On the question whether the High Court has jurisdiction in criminal cases prosecuted by the Commonwealth, the Chief Justice, Sir SAMUEL GRIFFITH, in the case of The King v. Kidman, (1915) 20 C.L.R., at p. 437, said :-" The other objections raised on the motion to quash the indictment related to the competence of this Court to exercise original jurisdiction in respect of the offence. The judicial power is a part of the right of sovereignty It extends to the administration of justice in respect as well of violations of the law which entail penal consequences as to infractions of civil rights." Per GRIFFITH, C.J., 20 C.L.R., at p. 437.

Mr. Justice ISAACS referring to the same point, said :-" Section 75 (II.) says that the High Court of Australia shall have original

jurisdiction in all matters wherein the Commonwealth is a party, and therefore, in such a matter as I have predicated, all that remains is to see whether in a given case the Commonwealth is properly represented. Unless some competent law alters the common law the King in such a cause is properly represented by his Attorney-General-which, of course, means the Attorney-General of the Commonwealth. In a matter of an offence against the State, the proper officer to prosecute is the Attorney-General. Certain requirements as to preliminary inquiry and commitment for trial, have been prescribed by section 68 of the Judiciary Act 1903-1914, but only as regards offences" against the laws of the Commonwealth." The more recent Act, No. 4 of 1915, however, by section 3 expressly provides that an indictment may be filed by the Attorney-General in the High Court without such examination or commitment where there is charged an indictable offence "against the laws of the Commonwealth." Per ISAACS, J., 20 C.L.R., at p. 446.

§ 134. “MATTERS BETWEEN STATES."

Boundary Questions.

The matters between States, in respect of which original jurisdiction is by section 75 of the Constitution conferred on the High Court, are matters which are of a like nature to those which can arise between individuals and which are capable of determination upon principles of law. Therefore, the boundary between two States having been fixed by an Imperial Act of Parliament before Federation, it was held that the High Court had jurisdiction to entertain an action by one of these States against the other seeking a declaration that certain land adjoining that boundary and in the de facto occupation of the latter State formed part of the territory of the former State: The State of South Australia v. The State of Victoria, (1911) 12 C.L.R., 667.

The Chief Justice (Sir SAMUEL GRIFFITH) :— I assent to the argument that the jurisdiction of the High Court, if any, is judicial and not political. So far, therefore, as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think that it is not justiciable under the Constitution. The law of the Empire, including Statute law, is binding as well upon dependencies, regarded as political entities, as upon individual subjects. If, therefore, any dependercy i fringes the law of the Empire governing its relations with a neighbouring

dependency it is guilty of a wrong towards that other dependency. Similar wrongs committed by one independent State against another are not justiciable, because there is no tribunal which has jurisdiction to take cognizance of them. But if there is a tribunal which has jurisdiction to summon a dependency before it, there is no reason why such a wrong should not be redressed. This Court has such jurisdiction. The question, therefore, whether the State of Victoria has infringed the Statute law of the Empire as regards South Australia may be inquired into by this Court as a matter between States," within the meaning of section 75 of the Constitution. For these reasons I am of opinion that this Court has jurisdiction to entertain a suit of this nature."

The Judicial Power in Controversies between States.

In an action brought in the High Court between States or between a State and a resident of another State the question may be raised as to the nature and extent of the judicial power which may be exercised by the High Court. By section 78 the Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power"; but in section 75 (IV.), giving the High Court original jurisdiction in matters between States, there is no reference to the limits of the judicial power.

A case which belongs to the jurisdiction of the Supreme Court on account of the interest a State has in the controversy must be one in which the State is either nominally or substantially the party. It is not sufficient if the State be but consequentially affected Fowler v. Lindsay and Fowler v. Miller, 3 Dall., 411; New York v. Connecticut, 4 Dall., 3.

The Supreme Court of the United States has frequently declined to take jurisdiction in inter-state controversies, which, according to settled principles of public law, are not the subjects of judicial cognizance: Hans v. Louisiana, 134 U.S., at p. 1. The mere fact that the State is a plaintiff is not a conclusive test that the controversy is one in which the Supreme Court is authorized to grant redress against another State or its citizens: Wisconsin v. Pelican Insurance Co., 127 U.S., 265.

The most numerous class of cases in which the Supreme Court of the United States has entertained suits between States has been

L.P.

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