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’.
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-
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
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
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,
behind Chapter II
of the Constitution, and embedded in Chapter III, is a personalised and ‘peculiarly functionalised
Australian conception of “the Government”’.
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 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
something that Sir Owen Dixon once described as being ‘opposed to all our conceptions, consti-
tutional, legal and historical’.
4Federal Law Review 47(1)