Commonwealth Immunity as a Constitutional Implication
| Author | Catherine Penhallurick |
| Published date | 01 June 2001 |
| Date | 01 June 2001 |
| DOI | http://doi.org/10.22145/flr.29.2.2 |
| Subject Matter | Article |
COMMONWEALTH IMMUNITY AS A CONSTITUTIONAL
IMPLICATION
Catherine Penhallurick*
INTRODUCTION
The existence and potential scope of a Commonwealth constitutional immunity from
State law has been a vexed issue ever since the High Court decided its first case on this
question in 19041 There have been major shifts in the approach of the Court over the
last century, and the doctrines expounded by the Court have been subjected to an
unusually large volume of academic criticism.2 The operation of Section 64 of the
Judiciary Act 1903 (Cth),3 together with the presumption of crown immunity,4 have in
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* BA, LLB (Hons) (ANU). This article is a revised version of an honours thesis completed at
the Australian National University Faculty of Law. I would like to thank Adrienne Stone,
Matthew Darke, Geraldine Chin and Amelia Simpson for their assistance with this article.
1 D'Emden v Pedder (1904) 1 CLR 91. See, eg, Geoffrey Sawer, Australian Federalism in the
Courts (1967) 126.
2 Nicolee Dixon, 'Limiting the Doctrine of Intergovernmental Immunity' (1993) 9 Queensland
University of Technology Law Journal 1; John Doyle, '1947 Revisited: The Immunity of the
Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian
Constitutional Law, (1994); Gareth Evans, 'Rethinking Commonwealth Immunity' (1972) 8
Melbourne University Law Review 521; Colin Howard, 'Some Problems of Commonwealth
Immunity and Exclusive Legislative Powers' (1972) 5 Federal Law Review 31; HP Lee,
'Commonwealth Liability to State Law — The Enigmatic Case of Pirrie v McFarlane' (1987)
17 Federal Law Review 132; RP Meagher and WMC Gummow, 'Sir Owen Dixon's Heresy'
(1980) 54 Australian Law Journal 25; Igor Mescher, 'Wither Commonwealth Immunity' (1998)
17 Australian Bar Review 23; Ronald Sackville, 'The Doctrine of the Immunity of
Instrumentalities in the United States and Australia: A Comparative Analysis' (1969) 7
Melbourne University Law Review 15; Geoffrey Sawer, 'State Statutes and the
Commonwealth' (1961) 1 University of Tasmania Law Review 580; Leslie Zines, 'Sir Owen
Dixon's Theory of Federalism' (1965) 1 Federal Law Review 221.
3 This provision has the effect of submitting the Commonwealth to State law once a 'suit' has
commenced. See, eg, Susan Kneebone, 'Claims Against the Commonwealth and States and
their Instrumentalities in Federal Jurisdiction: Section 64 of the Judiciary Act' (1996) 24
Federal Law Review 93; see also below n 6.
4 There is a now rather weak presumption that the Crown is not boun d by the general words
of statutory provisions. See especially Bropho v Western Australia (1990) 171 CLR 1, 23. See
also Commonwealth v Western Australia (1999) 196 CLR 392, 410 (Gleeson CJ and Gaudron
J).
152 Federal Law Review Volume 29
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many cases prevented the question of constitutional immunity from arising.5 There
are, however, a range of situations in which the constitutional issue will still arise.6
More importantly, the Commonwealth immunity from State law remains a highly
relevant topic because of the significance of the constitutional issues that it raises. The
debate over the existence and scope of the immunity reflects a broader uncertainty as
to the form of federalism created by the Australian Constitution.7
In this article, I will argue that the Commonwealth immunity from State law must
be recognised as a constitutional implication. Although there has been some
acknowledgment that the immunity is an implication, there has been little
consideration of the consequences tha t might follow from this.8
My contention is that the recognition that the Commonwealth immunity is a
constitutional implication has major consequences. The Commonwealth immunity has
developed in isolation from broader principles of constitutional law, but it must now
be reconciled with these principles. Specifically, the implication of Commonwealth
immunity must be drawn in a way that is consistent with the approach to implications
which has been articulated by the Court; that is, any immunity must be limited to what
is necessary to preserve the text and structure of the Constitution.
The structure of my argument will be as follows. Part I will outline the
development of the Commonwealth immunity doctrine, and show why the doctrine
must be recognised as an implication. Part II will outline the approach developed by
the Court to the drawing of constitutional implications. Part III will analyse the current
doctrine of Commonwealth immunity according to these principles. Part IV I will
argue that, given the Commonwealth's ability to protect itself using Section 109, no
form of Commonwealth immunity from State law should be implied from the
Constitution.
PART I: THE DOCTRINE OF COMMONWEALTH IMMUNITY AND ITS
CONSTITUTIONAL BASIS
In 1904 the Commonwealth Deputy Postmaster-General for Tasmania argued before
the newly established High Court that he should not have to pay the two pence of
stamp duty on his salary as required by the State of Tasmania.9 In 1997, the Defence
Housing Authority sought to convince the Court that it should not be required to
submit to New South Wales residential tenancy laws which conferred on their land lord
a right to inspect the premises rented by the DHA.10 In these two cases, amongst
others, the High Court has been asked to determine whether the Commonwealth
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5 While both of these topics are, in practice, closely connected to the issue of Commonwealth
constitutional immunity, they are beyond the scope of this article.
6 For instance, where Section 64 does not apply because there is no 'suit'. See Kneebone,
above n 3.
7 Mark Gladman, 'Re the Residential Tenancies Tribunal of NSW and Henderson; Ex Parte Defence
Housing Authority (1997) 190 CLR 410: States' Power to Bind the Commonwealth' (1998) 27
Federal Law Review 151, 151; Doyle, above n 2, 49, 68–72; Sackville, above n 2, 15.
8 Doyle, above n 2; Jeremy Kirk, 'Constitutional Implications from Representative
Democracy' (1995) 23 Federal Law Review 37, 67.
9 D'Emden v Pedder (1904) 1 CLR 91.
10 Re Residential Tenancies Tribunal (NSW); Ex Parte Defence Housing Authority (1997) 190 CLR
410 ('Residential Tenancies').
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