The Legal Personality of the Commonwealth of Australia
| DOI | 10.1177/0067205X18816236 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
| Subject Matter | Articles |
Article
The Legal Personality
of the Commonwealth
of Australia
Sebastian Howard Hartford Davis*
Abstract
The article analyses legal materials concerning the legal personality of the Commonwealth of
Australia under domestic law. It argues that the Commonwealth as legal person has an existence,
as a unit of the legal system, which is conceptually distinct from the Commonwealth of Australia as
a nation, and the Commonwealth as federal government of that nation. Current idioms (eg ‘polity’
and ‘body politic’) have a tendency to confuse these distinctions. The article suggests, as a more
appropriate way to denote the Commonwealth as legal person, the term ‘constitutional person’.
[I]t depends on the legal institutions and forms of every commonwealth whether and how far the State or
its titular head is officially treated as an artificial person.
1
Introduction
While there can be no doubt that the Commonwealth is a legal person,
2
the nature and extent of its
personality have not previously been the subject of sustained analysis. This article explores cases
and literature bearing upon that question and suggests a number of conclusions.
A fundamental difficulty obscuring analysis of this topic is the absence of a settled vocabulary.
The Commonwealth of Australia is the name of a legal person operating within the domestic legal
system. Amongst other meanings, the Commonwealth of Australia is also the name of a nation and
the central government of that nation. Is it sensible to speak of the ‘nation’, or the ‘government’, as
a legal person? As Dixon J said (in a related context) in the Melbourne Corporation Case:
So far I have stated my opinion in an abstract and general form and in this there is no little danger. For the
subject has no vocabulary of technical terms possessing a precise and settled connotation and the use of
expressions of indefinite and variable meaning is unavoidable.
3
*Barrister, Banco Chambers, Sydney. This article is based on doctoral research undertaken with the support of the Menzies
Foundation at the University of Oxford. The thesis was supervised by Professor Joshua Getzler, Professor of Law and
History at the University of Oxford, whose guidance and support I gratefully acknowledge. I also record a debt to Dr
Benjamin Spagnolo of Trinity College, Cambridge. The author can be contacted at hartforddavis@banco.net.au.
Federal Law Review
2019, Vol. 47(1) 3–30
ªThe Author(s) 2019
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DOI: 10.1177/0067205X18816236
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Analysis of the legal personality of the Commonwealth is hindered by terms like ‘Crown’,
‘state’, ‘polity’, ‘body politic’ and other cognates, which are of impressive cadence but obscure
meaning. Frederic Maitland once said of the term ‘Crown’ that it was a ‘convenient cover for
ignorance’, which ‘saves us from asking difficult questions’.
4
That observation is also true of terms
like ‘polity’ and ‘body politic’. The article demonstrates that such terms are used inconsistently as
between different judges and often in a way that elides concepts that it is important to distinguish.
To avoid such terms, and the associated risk of eliding the concepts of nation and government, this
article uses the term ‘constitutional person’ to describe the Commonwealth as legal person.
The Commonwealth of Australia, as legal person, is conceptually distinct from the ‘nation’ and
the ‘government’. The Commonwealth is a separate legal entity, one of the ‘basic units’ of the legal
system that ‘possess the capacity of being parties to the claim-duty and power-liability relation-
ships’.
5
The source of the Commonwealth’s legal personality is the Constitution. That has impor-
tant doctrinal and conceptual consequences (discussed further below), and this article uses the term
‘constitutional person’ as a shorthand to denote the Commonwealth of Australia as a legal person
operating within the domestic legal system, which is conceptually distinct from the nation and the
government.
The constitutional person achieves an important function, which is to have an entity (able to be
controlled or directed by the Executive Government, operating within its constitutional bound-
aries) that represents the people of Australia — ie holds lands, funds, liabilities and capacities of
various kinds on behalf of the people of Australia. But it is a mistake to infer from this that the
Commonwealth’s legal personality must be arrogated, or attributed in some way, to the ‘nation’ or
the ‘government’. The established legal attributes of the ‘nation’ and ‘government’ make it inap-
propriate that they be ascribed legal personality within the domestic legal system. In short, it is
inappropriate to elide these distinct concepts (constitutional person, nation and government).
Neither the ‘nation’ nor the ‘government’ has legal personality. The constitutional person is not
equivalent to the ‘state’ in the broad sense, which is not and never has been treated as a legal
person.
The proper theorisation of the Commonwealth’s legal personality is of practical and doctrinal
importance. Practically, the constitutional person is a very significant property owner, employer
and contractor. An appreciation of the scope and extent of its legal personality can assist (for
example) in determining which entity to sue and for the actions or mental states of which indi-
viduals or ‘groups’ it will be liable. The Commonwealth as legal person also plays an important
role in the design of the constitutional system. As Gageler J explained in M68,
6
behind Chapter II
of the Constitution, and embedded in Chapter III, is a personalised and ‘peculiarly functionalised
Australian conception of “the Government”’.
7
That conception is under-theorised, to date, but is an
important element of the architecture of constitutional government in Australia. It has and will
continue to have important doctrinal consequences. Three examples illustrate this. The first is
Williams (No 1), where there was debate about the extent to which the legal personality of the
Commonwealth informs the executive power conferred by s 61 of the Constitution. The second is
the Plain Packaging Case, where there was debate about what it means to say that the ‘Common-
wealth’ must have received a ‘benefit’ for the purpose of the guarantee of just terms in s 51(xxxi) of
the Constitution.
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The third is the enactment of s 10(2) of the Workplace Health and Safety Act
2011 (Cth), which contemplates criminal charges being laid against the Commonwealth
9
—
something that Sir Owen Dixon once described as being ‘opposed to all our conceptions, consti-
tutional, legal and historical’.
10
4Federal Law Review 47(1)
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