Crown Immunity: A Lesson From Australia?
| Date | 01 November 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01845.x |
| Published date | 01 November 1990 |
| Author | David Kinley |
November
19901
Crown Immunity:
A
Lesson
From Australia?
Crown Immunity: A Lesson From Australia?
David
Kinley”
In two recent cases concerning the immunity of the Crown from being bound by statutory
provisions, the House of Lords in
Lord Advocate
v
Dumbarton District Council,’
(the
‘Faslane’
case) and the High Court of Australia in
Bropho
v
State
of
Western Australia,z
have displayed markedly differing views as to the proper scope of such immunity. Their
Lordships’ decision in the former case reaffirms the traditional application of the ‘strict’
rule of construction of blanket immunity save where the Crown is bound by express statement
or necessary implication; whilst the High Court
in
the latter case departed
from
its erstwhile
adherence to the same ‘strict’ rule, and applied less exacting demands than express statement
or necessary implication in permitting a challenge to a claim of immunity to be successfully
mounted. The High Court argued that a continuance of the traditional common law doctrine
of granting almost complete statutory immunity to the Crown was wholly inappropriate
to the scale and complexity of modem state
operation^.^
In
so
doing a not insubstantial
crack may have been exposed in the protective wall of Crown immunity.
The
Bropho
decision notwithstanding, the prevailing judicial interpretation of this rule
of construction was that ‘the Crown is not bound unless it is expressly or by necessary
implication named.
’4
The same general principle was reasserted and elaborated upon by
Lord
Du
Parcq in
Province
of
Bombay
v
Municipal Corporation
of
Bombay.
In delivering
the advice of the Privy Council, his Lordship stated what the Board understood to be the
meaning of the words ‘by necessary implication,’
If, that is to say, it is manifest from the very words of the statute, that
it
was the intention of
the legislature that the Crown should be bound, then the result is the same as if the Crown had
been expressly named.
It
must then be inferred that the Crown, by assenting to the law, agreed
to be bound by its
provision^.^
Lord
Du
Parcq further stated that in discerning whether such an intention was ‘manifest
from the words of statute’ the apparent purpose of the enactment may be considered. Such
consideration, however, would satisfj the ‘manifest’ test only if it itself satisfied what
has since been referred to as ‘an eye of a needle
testy6;
that is,
[i]f
it
can be affirmed that, at the time when the statute was passed and received the royal sanction,
it was apparent from its terms that its beneficient purpose must be
whollyffustruted
unless the
Crown were bound, then
it
may be inferred that the Crown agreed
to
be bound.’
The exposition in the
Bombay
case of the conditions under which statutory provisions
may bind the Crown has since become the principal guide for judicial interpretation of
this presumptive rule; there exists a long line of cases, both in the United Kingdom8 and
in A~stralia,~ where the tests developed by Lord Du Parcq have been approved and
*Lecturer in Law, Australian National University.
1
[1989]
3
WLR
1346.
2 (1990)
64
AIJR
374.
3
ibid,
p
11.
4
Gonon
Local Board
v
Prison
Commissioners (Note)
[I9041
2
KB
165, 168
(per Willis
J);
see
also,
Anorney-
General
v
Hancock
[I9401
1
KB
427, 432
(per Wrottesley
J).
5
[1947]
AC
58,
61.
6
Bropho,
n
2
above, p
8.
7
[1947]
AC
58,
63
(emphasis supplied).
8
See
Madras Eleariciry Supply Coporation Ltd
v
Boarland
[
19551
AC
667;
Ministry
of
Agriculture, Fisheries
and
Foods
v
Jenkins
[1963] 2
QB
317;
British Broadcasting Corporation
v
Johns
[1965]
Ch
32,79
(per
Diplock
LJ);
and,
Department
of
Transpon
v
EgorofJ(1986) 278
EG
1361.
See
Commonwealth
v
Rind
(1966) 119
CLR
584,
5.98;
Bradken Consolidated Ltd
v
Broken Hill
Pry
Co
Ltd
(1979) 145
CLR
107;
and
Bolwell
v
Australian Telecommunications Commission
(1982) 42
ALR
235.
9
819
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