Some Problems of Commonwealth Immunity and Exclusive Legislative Powers
| Author | Colin Howard |
| DOI | 10.1177/0067205X7200500103 |
| Published date | 01 March 1972 |
| Date | 01 March 1972 |
| Subject Matter | Article |
SOME PROBLEl\'IS
OF
COMMONWEALTH
IMMUNITY AND EXCLUSIVE LEGISLATIVE
POWERS
By
COLIN
HOWARD*
1.
Introduction
There is a\vell-known obscurity
in
the law relating to Commonwealth
inlffiunity
from State legislative power.
It
is
that
whereas the
High
Court has laid
down
in
clear terms
that
the Commonwealth is
not
subject
to
State legislative power
at
all,lit
has
at
the
same time said2
that
the
Commonwealth
may
be
"affected by"3
State
laws
but
has
not
explained
\vhat
is
meant
by
"affected by".
There is also aless well-known obscurity
in
the
law
relating to
State
taxation of Common\vealth public servants.
The
High
Court
has
held"
that general
State
tax
laws apply to
Commonwealth
public servants
in
the
same
way as
to
other
subjects of
the
State, unless the
Commonwealth
enacts legislation exempting
the
payments which
it
makes
to
its
public
servants
by
way
of
salary
or
pension from
State
taxation.
The
obscurity
is
that a
Commonwealth
law
prescribing salaries
for
its
own
public
"crvants appears
to
be
an
exercise
of
exclusive legislative power;
that
a
Ll\V exempting such salaries from State taxation
appears
to
be
incidentali
to
that power,
and
therefore itself
an
exercise
of
exclusive power;
but;
that if this is so,
the
State tax
law
also,
in
its application
to
Common
..
!
\vealth salaries,
appears
to
be
an
exercise
of
Commonwealth
exclusive
po\ver and therefore invalid
in
the first place.
These problems
are
conveniently
treated
together because
they
have
acommon origin in the concept of implied immunity.
This
article is
an
attempt
to
cast
light
upon
them
by
suggesting a
coherent
theory of
Commonwealth immunity from
State
law in light of the High Court's
more recent pronouncements.
It
is intended
to
be
exploratory
rather
than
definitive and, with luck,
to
provoke
further speculation.
*LL.D.
(Melb.),
Hea;n
p~oi~ssor
of
Law
in
the University
of
Melbo~~e.'
m
1Commonwealth
v.
Cigamatic
Pty
Ltd
(1962)
108 C.L.R. 372; Common
..
r"'ealth
v.
Bogle
(1953)
89 C.L.R. 229.
For
relevant passages see
nne
5-8, 12
~nfra.
Cf. Australian Coastal Shipping Commission
v.
O'Reilly
(1962)
107
C.L.R~
6.
62 per Menzies J.
2For relevant passages see
nne
10-13 in!
rae
T
~
~his
expression is
taken
from
dicta
of
Dixon
J.
in
Federal Commissioner
of
aJ.atlon v. Official
Liquidator
0/
E.
O. Farley
Ltd
(1940)
63
C.L.R. 278, 308,
and of Fullagar J. in
Commonwealth
v. Bogle
(1953)
89 C.L.R. 229, 260.
..
West
v.
Commissioner 0/ Taxation (N.S.JV.) (1937) 56 C.L.R. 657.
31
32
Federal Law Review
;.
.1;
f
oJ:
~~
~
"~
[VOLU?vlE
51
~y
~~
l~
2. Commonwealth Immunity and the UAffected
By"
Doctrine
(a)
uafJected
by"
'~
A
standard
statement
of
Commonwealth immunity
and
the
"afIected~
by"
doctrine
was
made
by
Fullagar J. in Commonwealth
v.
BogIeS
in-t
1953 in ajudgment
concurred
in
by
Dixon
C.J.,
Webb
and
Kitto
JJ.,6;~
and
possibly
on
this
point
also
by
Taylor
J.7
Fullagar
J. said: -
The
Commonwealth-or
the
Crown
in
right
of
the
Commonwealth,l
or
\vhatever you choose to call
it-is,
to all intents
and
purposes,
a"
juristic person,
but
it
is
not
ajuristic
person
which is
subjecte~
e~ther
by
any
State Constitution
or
by
the
Commonwealth
Con-.~
stitution
to
the
legislative po\ver
of
any State Parliament. If,
fort
instance,
the
Commonwealth
Parliament
had never
enacted
s.
56~
of
the
Judiciary
Act
7a
•••
is is surely unthinkable
that
the
Victorian~
Parliament
could
have
made
a
law
rendering
the
Conlmonwea1th~
liable
for
torts
committed
in
Victoria.
The
Commonwealth may,
of~
course, become affected by State laws. If, for example,
it
makes
af
contract
in
Victoria, the terms
and
effect
of
that
contract
may
hav~
to
be
sought
in
the Goods
Act
[of Victoria]
...
But
Ishould
thi~
it
impossible to hold
that
the
Parliament
of
Victoria could
lawful1~
prescribe
the
uses which might
be
made
by
the
Commonwealth oht
its
own
property,
the
terms
upon
\vhich
that
property
might
be
le~
to
tenants,
or
the
terms
upon
which
the
Commonwealth
might!
provide
accommodation
for immigrants introduced into
Australia.~.
The
emphasis
in
the
last
sentence
of
this passage
on
use
of
land
and.
agreements with migrant tenants related to the facts
of
the
case, whichf
will be
returned
to
below.9
As
apreliminary, reference should be
mad~
to two earlier dicta
of
Dixon
J.
on
which
Fullagar
J.
relied.
The
firstlt
is
from Federal Commissioner
oj
Taxation v. Official Liquidator
of
o.
Farley
LtcJ.1°
in
1940:
T1
C(
\V~
wI
hiJ
Ci
in
Ie
In
many
respects the executive government
of
the
Commonwealthf 7
is affected
by
the condition
of
the general law.
For
instance,
thet
'
general
law
of
contract
may regulate
the
formation,
performanc~
and
discharge
of
the
contracts
which
the
Commonwealth finds
i~
necessary to
make
in the course
of
the
ordinary
administration
o~·
government.
Where
there
is
no Federal statute affecting
the
matte~
an
exercise
of
the legislative po\ver
of
the State over the
generallaWf
of
contract
might
incidentally apply
in
the
case
of
the
Common4
wealth alike with the citizen.
In
the practical administration
of
th~
5(1953) 89 C.L.R. 229.
sId.,
249, 255, 274 respectively.
"1
See his observations, id., 284.
7a
Reproduced
in
text following
D.
14 infra.
8Id., 259-260.
9
Infra
n. 26.
10
(1940)
63 C.L.R. 278, 308.
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