W8: Implied Immunity Notes

Who is the Crown? The Crown as signifying the government. ? The Monarch ? Governors and Governors-General ? State and Cth Executive Governments (Ministers, departments, public servants) ? Government agencies and instrumentalities (e. g. the Defence Housing Authority) ? Local Government? (No – a creature of State legislation) Sue v Hill (1999) 199 CLR 462 -the Crown? Represents the body politic ? Representative of the State in international relations ? The Government ? Paramount powers of the UK Immunity from suit: ?

Commonwealth Crown: abolished by s 56 of the Judiciary Act 1903 (Cth) ? Crown of SA: abolished by s 5 of the Crown Proceedings Act 1992 (SA) Does the Legislation Bind the Crown? Previously, Crown presumed not to be bound by statute unless by: ? Express words (Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979); or ? Implication “manifest from the very terms of the statute” and the “purpose of the statute being otherwise wholly frustrated“ (Province of Bombay v Municipal Council [1947] AC 58) Bropho v Western Australia (1990) 171 CLR 1 ?

Mason CJ, Deane, Toohey, Gaudron and McHugh JJ: Legislative intention the key. Strength of presumption depends on circumstances, including content and purpose of provision and identity of entity to which it purports to apply. The position in SA Section 20 Acts Interpretation Act 1915 (SA) (1) … an Act passed after 20 June 1990 will, unless the contrary intention appears (either expressly or by implication), be taken to bind the Crown, but not so as to impose any criminal liability on the Crown. 5) For the purposes of this section— (a) a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity; (b) a reference to an agent of the Crown extends to an instrumentality, officer or employee of the Crown or a contractor or other person who carries out functions on behalf of the Crown; Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013) A. Commonwealth’s ability to bind the State. ? Section 51 ‘The Parliament shall, subject to this Constitution, have power to make laws … ?

Sections 106 (saving of Constitution) and 107 (Saving of power of State Parliaments) ? Principle of federalism ? Early formulation ? Commonwealth could not legislate to affect the operation of State government ? Reciprocal ? Exploded in Engineers’ Case STEPS 1. Austin reformulation of the Melbourne Corporation principle: Cases, Facts Austin (2003) Superannuation surcharge applying to judicial officers (who were otherwise exempt from law because their pensions came straight out of State consolidated revenue) Test Gaudron, Gummow and Hayne JJ at 249 (BW 1123) ‘But one limitation’: ? The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as: “special burden” and “curtailment” of “capacity” of the States to “function as governments”’ Overall impact was to ensure ? Discrimination – an illustration of a law which impairs the super contribution surcharges fell capacity of the State to function equally on all high income earners, but the actual legislation targeted Held: Government employees. ? Gaudron, Gummow and Hayne JJ ?

It is necessary for the States to determine the Rejected two limbs of Melbourne terms and conditions of appointment and Corporation remuneration of judges (incl retirement benefits). ? Encourages persons of appropriate qualifications Discrimination alone not sufficient to judicial office. to attract immunity. ? Judges can be subjected to general taxes; but the superannuation surcharge legalisation placed a special burden on them (as high income earners). ? Kirby J – disagreed ? Surcharge is just a general tax law – no evidence that the surcharge would be a disincentive for judges to serve. Surcharge applies to other high income earners. Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013) Before Austin: Melbourne Corporation v Commonwealth (1947) 74 CLR 31 Dixon J two limbs: 1. A laws which discriminates against States. 2. A law which places a particular disability or burden upon an operation or activity of a State, and more especially ipon the execution of its constitutional powers. Legislation required States and their authorities to bank with The Constitution predicates their continued existence as independent the Commonwealth bank. ntities. Application of the first limb Mason J: (Authority from Queensland Electricity Commission v Commonwealth(1985)) Three comments on the first limb: 1. Discrimination against a State or States. 2. No discrimination if removing a right enjoyed only by one State. 3. Applies to Legislature, Executive and “agencies” of the State brought into existence for a public purpose (to carry out public functions even if the authority acts independently and is not subject to government direction and even if its assets and income are not property of the State).

Application of the second limb (Authority from Re Australian Education Union; ex parte Victoria (1995)) Second limb does not prevent any impairment on the capacity of the State to exercise its functions; but the existence of the States and their capacity to function as a government. But: there are certain employment matters “critical to a State’s capacity to function as a government”: ? number and identity of those whom it employs and term of appointment ? number and identity of those whom it dismisses on redundancy grounds ? Probably promotion and transfer (not necessary to decide) ? n relation to those who it wishes to employ at higher levels, States must have power to set the terms and conditions of their employment. “Higher levels of government” include Ministers, ministerial assistants and advisors, heads of departments, high level statutory officers, parliamentary officers and judges. Must be substantial interference with the State’s capacity to govern as an essential constituent element in the federal system. (Tasmanian Dam Case) Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013)

Other Cases (might be relevant depends on the facts, to support your point) Cases, Facts Test Pirrie v McFarlane (1925) Cth/ State not intended (otherwise stated to the contrary), to destroy or per Isaac J weaken the capacity or functions expressly conferred on the other. Referred to by Dixon J in West v Commissioner of Taxation (1937) (Payroll Act Case) (1971) 2. 5% payroll tax Exemption for some employers, including private schools (but not public schools) ? Tax laws in themselves do not attract immunity. Tasmanian Dam Case (1983) Cth legislation prevented construction works and other ctivities that would affect areas designated as of World Heritage significance. 11% of Tasmania affected. Argument that this impaired its capacity to function dismissed. Clarke v Commissioner of Taxation (2009) Superannuation surcharge on state MPs Held to be invalid. Application the two limbs of the immunity: ? Discriminatory laws against the States, restrictive or controlling of them ? General laws which prevent States from continuing to exist and function Reasoning: Exempting private schools did not amount to discrimination against the states. 2. % too insignificant to prevent the States from discharging their functions Must be substantial interference with the State’s capacity to govern as an essential constituent element in the federal system. Reasoning (apply two limb test): ? No operative interference with the legislative or executive powers of Tasmania in respect of that land. ? No ‘discriminatory attack’ (affects all enterprises – public and private- equally) ? Commonwealth measures diminish the powers of the Tasmanian executive government but they do not impede the processes by which its powers are exercised.

Types of discrimination ? Discriminating against a state vis-a-vis other states. ? Placing a burden on the States (as a whole) that is not placed on others. 1. 2. 3. 4. Legislation was not general taxation statute MPs are ‘higher level’ employees Size of financial burdens not necessarily determinative Not necessary that there is State legislation Note: Check BW, French CJ at 1129 Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013) B. States’ ability to bind the Commonwwealth STEPS 1. Apply Henderson’s Case reformulating the Cigamatic doctrine.

No power to enact: ? Laws which discriminate against the Commonwealth ? Laws which remove capacities of the Commonwealth Example (draw distinction! ) ? Capacities (cannot be regulated by the State) – Cth power to enter into contracts cannot be removed/singled out ? Exercise of capacity (can be regulated by the State) – Cth subject to general laws regulating contracts Facts ? ? Defence Housing Authority Act established in the context of existing State legislation. Residential Tenancies Act regulates the activities of DHA in the same way that the activities of others are regulated.

Other cases (which might be relevant) Pirrie v McFarlane (1925) Majority: When the Commonwealth (or its employees) enter into Air-Craftsman Thomas McFarlane the State’s territory, it will be subject to State laws – ordered to drive a vehicle. Charged under Motor Car Act 1915 Dissent (Isaacs and Rich JJ): State cannot regulate Commonwealth (Vic) with not having a licence. officers in the performance of their duties Uther’s Case (1947) State law regulated the priority of debts in the winding up of a company – bound the Crown and expressly ruled out any priority of debts for the Commonwealth.

Majority: Cth had entered into the regime of State regulation and thus had become subject to the States winding up laws. Cigamatic (1962) Note: Latham CJ: Cth has superior legislative power (s 109), and by suitable legislation can prevent the application of inconsistent State legislation (regarding the winding-up laws). Dixon J dissent: 1. Issue of priority of debts is between Crown in right of the Commonwealth and subjects of the Crown – State has no power to legislate as to the rights of the Cth. 2. General laws made by a State may affix legal consequences to transactions in which the Cth is involved.

Dixon CJ: 1. Priority of debts is a ‘fiscal right of the government’. 2. The question is not about the power of a State to maeksome general law governing the rights and duties of those who enter into some description of transaction (ie sale of goods) nor; The Cth executive choosing to enter into a transaction of that description. 3. State could not affect privileges of the Commonwealth, or the rights and duties between the Commonwealth and its people Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013) Note: 1. Cth just suddenly emerged as a new entity. . State never had a power before the federation to legislate law which bound the Cth. 3. Thus, Cth and States are not equal partners. State is not above the Cth & Cth law can affect the State. Note: Implied immunity of the Cth after Cigamatic NB critique of Cigamatic in Meagher and Gummow, “Sir Owen Dixon’s Heresy” *BW 1140+ ? Reject the interpretation of the Commonwealth’s origin ? Reject limitation on State law in relation to the Commonwealth ? Only question is the validity of a State law – NB Commonwealth can protect itself through its legislative supremacy under s109

Conclusion of B Kirby J dissent in Henderson’s Case: Henderson’s case resolved through the application of s109. ? Defence Housing Authority Act was a comprehensive code regulating the Authority’s function of providing housing for the needs of the defence force and other departments. As such it was inconsistent with the Residential Tenancies Act. ? ? Rejects Cigamatic doctrine Only immunity of Commonwealth is a reciprocal application of the Melbourne Corporation principle Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013)

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