HIGH COURT OF AUSTRALIA
BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
RE THE RESIDENTIAL TENANCIES TRIBUNAL OF NEW SOUTH WALES and HENDERSON & ANOR; EX PARTE THE DEFENCE HOUSING AUTHORITY
Constitutional law
(1997) 146 ALR 495
12 August 1997
Constitutional law
Constitutional law—Jurisdiction of Residential Tenancies Tribunal of New South Wales over Commonwealth Defence Housing Authority—Inconsistency of laws under s 109 of the Constitution—Whether Defence Housing Authority Act 1987 (Cth) inconsistent with Residential Tenancies Act 1987 (NSW). Constitutional law—Jurisdiction of Residential Tenancies Tribunal of New South Wales over Commonwealth Defence Housing Authority—Exclusive power of Commonwealth Parliament under s 52(ii) of the Constitution over departments of the public service transferred to Commonwealth Executive by the Constitution—Whether Residential Tenancies Act 1987 (NSW) purports to deal with matters within the exclusive power of the Commonwealth. Constitutional law—Jurisdiction of Residential Tenancies Tribunal of New South Wales over Commonwealth Defence Housing Authority—Extent to which State laws can bind Crown in right of the Commonwealth—Doctrine expounded in The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372—Whether Defence Housing Authority entitled to benefit of immunity conferred by that doctrine. Constitutional law—Jurisdiction of Residential Tenancies Tribunal of New South Wales over Commonwealth Defence Housing Authority—Effect of s 64 of the Judiciary Act 1903 (Cth). Constitution of the Commonwealth, ss 52(ii), 64, 69, 84, 85, 109. Judiciary Act 1903 (Cth), s 64. Defence Housing Authority Act 1987 (Cth). Residential Tenancies Act 1987 (NSW).
Orders
Order:
1. Order nisi for a writ of prohibition discharged.
2. The prosecutor pay the respondents' costs.
Decision
BRENNAN CJ.
I am in general agreement with the reasons for judgment of Dawson, Toohey and Gaudron JJ in holding that there is no relevant inconsistency under s 109 of the Constitution between the provisions of the Residential Tenancies Act 1987 (NSW) ("the RTA Act") and the Defence Housing Authority Act 1987 (Cth)("the DHA Act"). I agree also with their Honours' reasons for holding that s 52(ii) has no application to the Commonwealth Department of Defence and consequently is immaterial to the effect of a State law on any transactions into which that Department might enter.
Next, the question arises as to the true operation and effect of The Commonwealth v Cigamatic Pty Ltd (In Liquidation)[1]. Like their Honours, I would draw a distinction between the capacities and functions of the Crown in right of the Commonwealth and the transactions in which that Crown may choose to engage in exercise of its capacities and functions. By "capacities and functions" I mean the rights, powers, privileges and immunities which are collectively described as the "executive power of the Commonwealth" in s 61 of the Constitution. The executive power of the Commonwealth, being vested in the Queen and exercisable by the Governor-General, derives its content mediately or immediately from the Constitution. Executive power may be conferred by a law of the Commonwealth or it may be the power which, at least in earlier times, was seen as part of the Royal prerogative. The executive power of the Commonwealth may be modified by valid laws of the Commonwealth[2] but it is beyond the legislative reach of the States. The States have no legislative power that can modify a grant of power to the Crown in right of the Commonwealth by a law of the Commonwealth nor any legislative power that can modify a prerogative power conferred by the Constitution. In Cigamatic[3],Dixon CJ clearly distinguished between the prerogatives of the Crown in right of the Commonwealth and transactions into which the Crown may choose to enter. Speaking of the common law priority of the Crown in the payment of debts, he said[4]:
"If you express the priority belonging to the Commonwealth as a prerogative of the Crown in right of the Commonwealth, the question is whether the legislative powers of the States could extend over one of the prerogatives of the Crown in right of the Commonwealth. If, as in modern times I think it is more correct to do, you describe it as a fiscal right belonging to the Commonwealth as a government and affecting its Treasury, it is a question of State legislative power affecting to control or abolish a federal fiscal right. It is not a question of the authority of the power of a State to make some general law governing the rights and duties of those who enter into some description of transaction, such as the sale of goods, and of the Commonwealth in its executive arm choosing to enter into a transaction of that description. It is not a question of the exercise of some specific grant of power which according to the very meaning of the terms in which it is defined embraces the subject matter itself: for it is not the plan of the Constitution to grant specific powers to the States over defined subjects. It is, I think, a question which cannot be regarded as simply governed by the applicability of the principles upon which Melbourne Corporation v The Commonwealth[5] depended."The Melbourne Corporation principle could have no application, for that principle proceeds on the footing that specific legislative powers conferred on the Parliament of the Commonwealth might be exercised to affect the prerogatives of the Crown in right of a State, as his Honour pointed out in In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation[6]. The Melbourne Corporation principle states the limitation which is to be implied from the structure of the Constitution on the scope of the specific legislative powers of the Commonwealth. The principle, as stated by Mason J in Queensland Electricity Commission v The Commonwealth[7],
"consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments: Victoria v Australian Building Construction Employees' and Builders Labourers' Federation[8]. The second element of the prohibition is necessarily less precise than the first; it protects the States against laws which, complying with the first element because they have a general application, may nevertheless produce the effect which it is the object of the principle to prevent."This principle is irrelevant to the scope of any State legislative power.
A State law which purports on its face to impose a burden on the Crown in right of the Commonwealth fails for one of two reasons. If the burden falls on the enjoyment of the Commonwealth prerogative, the law would be offensive to s 61 of the Constitution; if it falls on the enjoyment of a statutory power, it would be inconsistent with the Commonwealth law conferring the power and would be invalid by reason of s 109. State legislative power, though it is not confined to specific heads or subjects and though it is a plenary power so long as it has a relevant nexus to the State, is subject to the limitations or restrictions which are found expressly or impliedly in the Constitution. When a legislative power is limited or restricted, a somewhat different approach must be taken to the characterisation of a law that is impugned by reason of the limitation or restriction from the approach taken to the characterisation of a law that is impugned simply on the ground that it falls outside a specific head or subject of power. In the latter case, the approach is to construe the law and thereby to ascertain what rights, duties, powers or privileges the law creates or affects and, by reference solely to the operation of the law thus ascertained, to see whether it is a law "with respect to" one or more of the heads of power enumerated in that section[9]. The focus of attention is on the text of the law. But when a limitation or restriction on power is relied on to invalidate the law, the focus of attention is on the effect of the law in and upon the facts and circumstances to which it relates - its practical operation - as well as to its terms in order to ensure that the limitation or restriction is not flouted by mere drafting devices. For that reason, this Court looks to the practical operation (or substance) as well as the legal operation (or form) of an impugned law when an attack on validity is based on a constitutional privative of power[10]. This approach is of particular importance when a State law is impugned since the attack must necessarily assert a conflict between the law and a constitutional limitation or restriction upon the power to enact it.
However, there is no reason why the Crown in right of the Commonwealth should not be bound by a State law of general application which governs transactions into which the Crown in right of the Commonwealth may choose to enter. The executive power of the Commonwealth, exercised by its choice to enter the transaction, is not affected merely because the incidents of the transaction are prescribed by a State law. That, I understand, was the view which Dixon CJ was expressing in the passage cited from his Honour's judgment in Cigamatic.
When the Crown in right of the Commonwealth enters into a transaction governed by State law, it is "bound" in the sense that the rights it acquires or the obligations it assumes by entering into the transaction are those prescribed by or pursuant to the State law. In determining the effect of a State law on the Crown in right of the Commonwealth, a proposition that the Crown is or is not "bound" by the law needs to be precisely understood, for "bound" may have a different significance when the proposition refers to laws of different kinds. Thus, it is meaningless to speak of the Crown being "bound" by State criminal laws which either prescribe duties to be performed under penalty or prohibit conduct of a prescribed kind[11]. If a servant or agent of the Crown fails to perform the duty or engages in the prohibited conduct, a question arises as to whether the servant or agent is immune from criminal liability by reason of his or her employment or agency. If the act is done or the omission is made in exercise of a statutory power conferred by a valid law of the Commonwealth, the servant or agent is immune from criminal liability by reason of the inconsistency between the State law and the Commonwealth law that confers the power. The question is simply one of inconsistency under s 109 of the Constitution. But if the proscribed act is done or the proscribed omission is made by the servant or agent without statutory authority, there is no prerogative power in the Crown in right of the Commonwealth to dispense the servant or agent from liability under the State criminal law. In A v Hayden[12]I sought to explain the relevant principle:
"The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy. A prerogative to dispense from the laws was exercised by mediaeval kings, but it was a prerogative 'replete with absurdity, and might be converted to the most dangerous purposes'[13]. James II was the last King to exercise the prerogative dispensing power[14], and the reaction to his doing so found expression in the Declaration of Right. It was there declared that 'the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal'. By the Bill of Rights the power to dispense from any statute was abolished[15]. Whatever vestige of the dispensing power then remained, it is no more. The principle, as expressed in the Act of Settlement, is that all officers and ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy[16]:It follows that, absent Commonwealth statutory authority, the Crown in right of the Commonwealth cannot authorise its servants or agents to perform their functions in contravention of the criminal laws of a State and cannot confer immunity upon them if, in performing those functions, they contravene those laws. For that reason, Pirrie v McFarlane[17]was, in my respectful opinion, rightly decided.
'If an act is unlawful - forbidden by law - a person who does it can claim no protection by saying that he acted under the authority of the Crown.'"
It is not necessary on this occasion to consider the operation of s 64 of the Judiciary Act 1903 (Cth) upon the rights and obligations of the Crown in right of the Commonwealth arising out of a transaction governed by a State law except to say that it may not be necessary to attribute a substantive operation to s 64 if the full import of what Dixon CJ said in Cigamatic is appreciated. Nor is it necessary to consider whether a statutory corporation such as the Defence Housing Authority, possessed of a discretion in the exercise of its powers independent of ministerial or other governmental control, can be regarded as an emanation of the Crown so as to entitle it to the privileges and immunities possessed by the Crown. It has been sufficient to assume that the Defence Housing Authority is or represents the Crown in right of the Commonwealth and to dispose of these proceedings on that assumption.
For these reasons, I would discharge the order nisi.
DAWSON, TOOHEY AND GAUDRON JJ.
The issue in these proceedings is whether the Residential Tenancies Tribunal of New South Wales ("the tribunal"), a State tribunal constituted under s 80 of the Residential Tenancies Act 1987 (NSW), has jurisdiction over the Defence Housing Authority ("the DHA"), a Commonwealth body established under s 4 of the Defence Housing Authority Act 1987 (Cth). The prosecutor, the DHA, seeks to prohibit the owner of premises leased to the DHA, and the tribunal, from proceeding with the hearing of an application by the owner with respect to those premises. The application is for orders that the DHA allow the owner to enter the premises for the purposes of inspection and that the DHA give the owner a key to the premises. Section 24(4) of the Residential Tenancies Act provides that the tribunal may, on application by a landlord under a residential tenancy agreement, make an order authorising the landlord or any other person to enter the premises. Section 29(5)(c) of the same Act provides that the tribunal may, on application by a landlord or tenant under a residential tenancy agreement, make an order requiring a copy of a key to be given to the landlord or tenant.
"Residential premises" are relevantly defined in s 3(1) of the Residential Tenancies Act to mean "any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence" and "residential tenancy agreement" is relevantly defined in the same sub-section to mean "any agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence". It is not contested that the premises in question are residential premises and that they are leased under a residential tenancy agreement within the meaning of the definition.
The grounds upon which the DHA seeks to prohibit further proceedings in the tribunal are fourfold. First, the DHA says that, in purporting to confer jurisdiction upon the tribunal over it, the Residential Tenancies Act is inconsistent with the Defence Housing Authority Act and is invalid under s 109 of the Constitution. Secondly, it maintains that the Residential Tenancies Act is invalid in so far as it purports to apply to it because it deals with a matter within the exclusive power of the Commonwealth under s 52(ii) of the Constitution. Thirdly, it contends that the legislative power of the New South Wales Parliament does not extend to it by reason of the principle expounded in The Commonwealth v Cigamatic Pty Ltd (In Liquidation)[18]. Fourthly, the DHA submits that if, as contended, the Residential Tenancies Act is otherwise invalid in its application to it, s 64 of the Judiciary Act 1903 (Cth) does not operate to subject it to an order under ss 24(4) or 29(5) of the Residential Tenancies Act.
The Residential Tenancies Act
The long title of the Residential Tenancies Act relevantly describes it as:
"An Act relating to the rights and obligations of landlords and tenants under residential tenancy agreements; to make provision with respect to excessive rent increases and rents; to confer functions on the Residential Tenancies Tribunal of New South Wales with respect to landlords and tenants".Under s 5 the Act applies to residential tenancy agreements. Section 3(4) provides that for the purpose of determining whether an agreement is a residential tenancy agreement as defined, it does not matter that the person granted the right of occupation is a corporation if the premises are used, or intended for use, as a residence by a natural person. With one immaterial exception, the Act is expressed by s 4 to bind the Crown "not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities." Thus, if it may validly do so, the Act extends to the Crown in right of the Commonwealth and, if the DHA is an agency of the Crown, as it contends it is, to that body.
Part 2 of the Residential Tenancies Act deals with residential tenancy agreements and under s 8 a standard form of residential tenancy agreement may be prescribed by regulation. Under s 9(2), except for additional terms permitted by s 10, a residential tenancy agreement for which a standard form is prescribed is void to the extent to which it is not in or to the effect of the form. Part 3 provides terms which are deemed to be contained in a residential tenancy agreement, including one in a standard form. Under s 24(1) one of those terms is that the landlord or the landlord's agent or any person authorised by the landlord may enter the residential premises in certain specified circumstances. Another such term is that in s 29(1), namely that the landlord shall provide and maintain locks or other security devices as are necessary to ensure that the residential premises are reasonably secure and that a copy of the key or other opening device for any altered lock shall be given by the party making the alteration to the other party except where that party consents otherwise or the tribunal so authorises.
Part 4 contains provisions directed against the charging of excessive rent and Pt 5 deals with the termination of residential tenancy agreements. Part 6 provides for the constitution of the tribunal which under s 83 has such jurisdiction as is conferred upon it under the Residential Tenancies Act or any other Act and has jurisdiction throughout New South Wales. Under s 93(4) the tribunal is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Part 7 provides for the administration of the Act and Pt 8 contains miscellaneous provisions including s 125, pursuant to which a person who contravenes or fails to comply with certain specified provisions of the Act is guilty of an offence and liable to a monetary penalty. The specified provisions include s 24(5), which forbids a landlord from entering residential premises except as permitted by the section, and s 29(2), which forbids a landlord or tenant to alter, remove or add a lock or other security device without reasonable excuse or the consent of the other party.
The Defence Housing Authority Act
Under s 5(1) of the Defence Housing Authority Act the function of the DHA is to provide adequate and suitable housing for members of the Australian Defence Force and their families, officers and employees of the Commonwealth Department of Defence and their families, and other persons. Under s 5(2) the DHA is to provide such housing as the Minister directs is necessary to meet the operational needs of the Defence Force and the requirements of the Department. Section 31(1) provides that, except as provided in that section or as otherwise expressly provided by the Defence Housing Authority Act, the DHA is not subject to direction by or on behalf of the Commonwealth Government. Section 31(2) provides that where the Minister is satisfied that it is desirable in the public interest to do so, the Minister may give directions to the DHA with respect to the performance of its function and the exercise of its powers. Section 6 requires the DHA to perform its function in accordance with the policies of the Commonwealth and with sound commercial practice.
Under s 11 of the Defence Housing Authority Act the DHA is a body corporate and it is given certain powers by s 7 to deal in property and act as a landlord. Thus s 7, so far as is relevant for present purposes, provides:
"(1) The Authority has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular, may:By reason of s 59(1), the rent payable for any house let or leased by the DHA is such as the DHA determines from time to time, having regard to the prevailing market rents for houses. Any such determination is subject to the requirements in s 6 (that the DHA perform its function in a manner that accords with the policies of the Commonwealth and sound commercial practice), s 31(3) (that the DHA comply with any direction of the Minister under s 31(2)) and s 59 itself (that the DHA formulate principles by which it determines rents and notifies the Minister of those principles). Section 63(1) provides that, save for specified exceptions, the DHA is not subject to taxation under the laws of the Commonwealth or of a State or Territory.
(a) purchase and otherwise acquire, and sell and otherwise dispose of: (i) land and any interest in land; and (ii) houses;
(b) develop land;
(c) build, demolish, alter, renovate, maintain, repair and improve houses; (d) convert buildings and other structures that are not houses into houses;
(e) rent out, and generally manage and control:
(i) land and houses acquired by it; and
(ii) land and houses that are:
(A) owned or held under lease by the Commonwealth or a State or Territory; and
(B) made available to it;
(f) determine and collect rents, fees and charges in relation to land and houses rented out by it;
(g) evict tenants and otherwise recover possession of land and houses referred to in paragraph (e);
(h) provide and improve amenities, facilities and services for persons living in houses rented out by it; ...
(p) enter into contracts; ...
(x) do anything incidental to any of its powers."
Inconsistency under s 109 of the Constitution
The DHA submitted that the Residential Tenancies Act is inconsistent with the Defence Housing Authority Act in reliance upon the proposition that the Defence Housing Authority Act provides a comprehensive and exclusive code regulating the means by which the DHA is required to perform its function of providing adequate and suitable housing in order to meet the operational needs of the Defence Force and the requirements of Departments throughout Australia. Plainly that proposition cannot be supported. It may contain an accurate enough description of the function of the DHA but the assertion that the Defence Housing Authority Act constitutes a comprehensive and exclusive code of the means by which that function is to be performed is, in our view, incorrect. In that regard the Act is neither comprehensive nor exclusive, for in conferring the powers which it does upon the DHA it assumes an existing legal system within which and by means of which those powers might be exercised. Thus it is meaningless to speak of a power to purchase and sell land or to enter into contracts in the absence of any law governing dealings in real estate or any law of contracts. Similarly it is meaningless to speak of the power to rent out houses and land or to evict tenants and otherwise recover possession of land and houses in the absence of any law relating to landlord and tenant. Moreover, it is difficult to see how the DHA could endeavour to perform its function in a manner that is in accordance with sound commercial practice, as s 6(b) requires it to do, without reference to a pre-existing legal system. The Defence Housing Authority Act makes no provision for the creation and enforcement of those rights and obligations which are necessary for the performance of its function and it is obvious that it was intended to operate within a legal framework provided by the common law and State law and, for that matter, federal law should any federal law have a relevant application.
In Stock Motor Ploughs Ltd v Forsyth[19]Dixon J referred to the situation where a federal statute (in that case the Bills of Exchange Act 1909 (Cth)) deals with a particular subject matter (in that case certain aspects of the law relating to bills and notes) but is predicated upon the existence of common law and statute law within a State. He said:
"When from the general body of the law rules governing a special kind of instrument were selected for formulation in a statutory shape, it was inevitable that what was stated should, not only for its proper understanding but for its practical application, continue to depend upon the whole content of the law of which it formed a coherent part. The subject could not be isolated. Bills of exchange and promissory notes have very special characteristics, but they are not and could not be removed from the operation of the general law of status, of obligation, and of remedies. Further, heads of law which deal with particular relations, with transactions of a special nature and with general conceptions of property must continue to include bills and notes within their operation. For the most part, the rules of common law and the doctrines of equity cover this ground but statute plays its part." These words provide, by analogy, a guide to the situation in this case.
Of course, specific provisions of the Defence Housing Authority Act may evince an intention to oust State legislation and so give rise to an inconsistency under s 109. Section 63, which relieves the DHA from liability to tax under the laws of a State, is one such provision[20]. However, the DHA's submission is not based upon any specific provision in the Act. It is based upon the proposition that the Act is intended to be an exhaustive and exclusive law governing the fulfilment by the DHA of its function. For the reason which we have given, the Act displays no such intention. Indeed, the intention is evidently to the contrary. Whatever inconsistency might otherwise be demonstrated, the Defence Housing Authority Act makes it quite plain that it does not intend to be exhaustive or exclusive in relation to the means by which the DHA's function is to be performed[21].
The way in which the Defence Housing Authority Act is dependent for its practical operation upon State law may be seen from the terms of the lease in this case. The DHA entered into the lease as lessee pursuant to the power given to it by s 7 of the Defence Housing Authority Act. It is a lease for a term of ten years and derives its force at law from registration under the Real Property Act 1900 (NSW). However, the covenants and powers implied in or under the Real Property Act or the Conveyancing Act 1919 (NSW) are excluded except when expressly included. The lease provides that it is to be construed according to the laws of the State of New South Wales. Any dispute arising out of a clause allowing either party to terminate the lease in certain circumstances where the building on the premises is significantly damaged is to be referred to arbitration under the relevant legislation in New South Wales. The lessor consents to the lessee sub-letting the premises to the Commonwealth and the Commonwealth entering a tenancy agreement with Defence personnel. There is provision in certain circumstances for the lessee to sub-let the premises or assign the lease to a person other than the Commonwealth but any such sub-lease or assignment is subject to the terms and conditions of the lease being amended to the extent necessary to comply with the provisions of the Residential Tenancies Act. Express provision is made for the lessee to comply with all statutes, ordinances, proclamations, orders and regulations present or future affecting or relating to the demised premises or the use thereof, and with all requirements which may be made or notices or orders which may be given by any governmental, semi-governmental, city, municipal, health, licensing or any other authority having jurisdiction or authority in respect of the demised premises or the use thereof. The lessor undertakes to procure the due registration of the lease and to furnish a registration copy to the lessee. These and other provisions of the lease would be devoid of meaning were the statutes of New South Wales inapplicable.
No suggestion was made that the lease is not of the type contemplated by the Defence Housing Authority Act, notwithstanding that its terms demonstrate its reliance upon the common law as modified by statute in New South Wales for its effect. No doubt the terms of the lease are contractual, but they serve to demonstrate how the DHA could not achieve its purpose otherwise than in reliance upon that law. It follows that the Act does not exclude that law and, far from being inconsistent with it, is dependent upon its existence for its effective operation. That law includes the Residential Tenancies Act.
The exclusive power of the Commonwealth Parliament
under s 52(ii) of the Constitution
Section 52(ii) of the Constitution provides that the Parliament shall, subject to the Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
"Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth".Section 52(ii) must be considered in conjunction with ss 64, 69, 84 and 85. Section 69 provides:
"On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth:-
Posts, telegraphs, and telephones: Naval and military defence: Lighthouses, lightships, beacons, and buoys: Quarantine.But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment." Under s 64 of the Constitution the Governor-General in Council may establish departments of State of the Commonwealth. The Commonwealth Department of Defence was established pursuant to s 64 on 1 January 1901[22]. It was not until 19 February 1901 that the Governor-General proclaimed the transfer of State naval and military defence departments pursuant to s 69[23] and in the meantime officers were appointed to the Commonwealth Department of Defence who were not transferred from any State department[24]. That sequence of events, which was contemplated by the Constitution, requires a distinction to be drawn between the Commonwealth Department of Defence established pursuant to s 64 and the State naval and military defence departments which were transferred to the Commonwealth pursuant to s 69. The same distinction must be drawn in construing s 52(ii), and this is suggested by the words "the control of which is by this Constitution transferred to the Executive Government of the Commonwealth". Those words clearly qualify the words "any department of the public service" and can only be a reference to transfer under s 69, which refers only to State departments.
Not only is such a construction suggested by the wording of s 52(ii), but it is confirmed by the drafting history of that provision and of s 69. Recourse may be had to that history for the purpose of construing those two provisions[25]. The words of s 52(ii) differ from the corresponding words of s 69 in three respects. First, they do not have the words "in each State" after the words "department of the public service". Secondly, they refer to the transfer, not of a department, but of "the control of" a department. Thirdly, they refer to a transfer, not to the Commonwealth, but to the "Executive Government of the" Commonwealth. However, these differences are the result of successive amendments to cl 67 (which became s 69) without corresponding amendments to the clause which became s 52(ii). Originally there were no such differences between the two clauses. The words "in each State" were added to cl 67 in Adelaide in 1897[26]. The words "Executive Government of the" were omitted in Melbourne in 1898[27]. And the words "the control of" were also omitted in Melbourne in 1898[28]. In each case the change was regarded as formal only and the failure to make consequential amendments to the clause which was to become s 52(ii) cannot be regarded as having destroyed the correspondence between that provision and s 69.
It is clear, therefore, that the departments of the public service to which s 52(ii) refers are departments the control of which is transferred to the Executive Government of the Commonwealth under s 69, that is to say, State departments. Since departments of the public service have no legal personality, they consist of serving officers "of the department", property "used ... in connection with the department" and "current obligations of the State in respect of the department transferred". This is apparent from ss 84 and 85 which provide for the manner in which each of these aspects of a State department is to be dealt with upon its transfer to the Commonwealth.
In particular, s 84 deals with the rights of a public servant in the public service of a State whose department is transferred to the Commonwealth. Existing and accrued rights are preserved but provision is made for the payment by the State of a proportion of any pension or retiring allowance to be paid to him by the Commonwealth. It is against this background that it can be seen why s 52(ii) provides for exclusive power to be given to the Commonwealth Parliament only with respect to "[m]atters relating to any department" transferred. There is ample power given to the Parliament under s 51 to make laws with respect to any department validly established under s 64 and such laws are not confined to "[m]atters relating to any department", that is to say, to the control of the department, but extend to the substantive matters with which the department is concerned. Such a department, even if its activities might fall within one of the categories described in s 69, might be established before any transfer of the State department under s 69. Indeed, that is what happened with the Commonwealth Department of Defence.
The intention which lay behind s 52(ii) was to ensure that State laws did not follow the persons or property of a department of the State public service into the Commonwealth public service. That is why its ambit is confined and why it applies only to matters relating to a department in the public service of a State which is transferred to the Commonwealth by the Constitution and not to matters relating to any department of the public service of the Commonwealth.
Apart from passing references which are inconclusive[29], the only real examination made of s 52(ii) in this Court was by Latham CJ in Carter v Egg and Egg Pulp Marketing Board (Vict)[30]where he said:
"Sec 52(ii) relates to the control of matters relating to transferred departments. The transferred departments are (sec 69) - Posts, telegraphs, and telephones; Naval and military defence; Lighthouses, lightships, beacons, and buoys; Quarantine. Power to legislate with respect to the subject matters with which such departments deal is conferred, in my opinion, not by sec 52(ii) but by sec 51(v) - posts, &c, sec 51(vi) - defence, sec 51(vii) - lighthouses &c, and sec 51(ix) - quarantine. These provisions would be quite unnecessary if sec 52(ii) conferred exclusive, and therefore complete, legislative power in relation to these subject matters. I venture to refer to what I said as to the meaning of sec 52(ii) in R v Brislan; Ex parte Williams[31].It may further be observed that sec 69 relates to the transfer of 'departments of the public service in each State' - ie, to State public services. When the Commonwealth constitutes a department of its own, eg, defence, the provisions of sec 51 are sufficient to give the Commonwealth complete control of that department. Any State legislation professing to control a Commonwealth department would be invalid, because no State Parliament has or ever has had any power to legislate upon such a subject. Sec 52(ii), as I said in R v Brislan[32], is directed to establishing Commonwealth control of certain State servants and State property, subject to conditions stated in secs 84 and 85".
We agree with these remarks of Latham CJ and it follows that we respectfully disagree with a contrary view expressed by Kirby P and Samuels JA in the Court of Appeal of New South Wales in Australian Postal Commission v Dao[33].
It is clear that the matters dealt with by the Residential Tenancies Act are not matters relating to any department of the public service of a State the control of which was transferred by the Constitution to the Executive Government of the Commonwealth and hence do not fall within the exclusive power of the Commonwealth under s 52(ii). This is not to treat s 52(ii) as being merely transitional, although it is true that its force may be largely spent so far as those departments which were transferred immediately following federation are concerned. Some property which was transferred may, however, remain.
The Commonwealth v Cigamatic Pty Ltd (In Liquidation)
It was submitted by the DHA and by the Attorney-General for the Commonwealth intervening that State laws cannot by their own force bind the Crown in right of the Commonwealth. That submission was said to be supported by the decision of this Court in The Commonwealth v Cigamatic Pty Ltd (In Liquidation)[34], but in truth it represents a basic misconception of what was decided in that case.
In the present context, the Crown in right of the Commonwealth means the government of the Commonwealth exercising the executive power vested in it by s 61 of the Constitution. That power includes the prerogatives of the Crown because the setting in which the Crown is invested with executive power is that of the common law and the prerogatives of the Crown are those rights, powers, privileges and immunities which it possesses at common law[35]. Of course, those prerogatives are not immutable but, being derived from the common law, are susceptible to statutory alteration or abolition where the necessary legislative power exists. Under s 61 the executive power vested in the Crown is exercisable by the Governor-General as the Crown's representative. The activities of the Commonwealth government are conducted formally on behalf of the Crown through the Governor-General acting on the advice of the Federal Executive Council[36]. The Federal Executive Council consists of the Crown's Ministers of State drawn, subject to a minor qualification, from the House of Representatives and the Senate[37]. In reality, the Crown acts in its day to day activities through the agency of its public service and through other institutions or instrumentalities created for the purpose. The Crown's functions nowadays extend beyond the traditional, or clearly regal, functions of government to activities of an entrepreneurial or commercial kind which, in general, were previously engaged in only by subjects of the Crown.
It is necessary at the outset to observe a distinction between the capacities of the Crown on the one hand, by which we mean its rights, powers, privileges and immunities, and the exercise of those capacities on the other. In referring to the capacities of the Crown so defined, we are speaking of the same thing of which Dixon J spoke when he used the words "capacity or functions" in West v Commissioner of Taxation (NSW)[38] in quoting from the dissenting judgment of Isaacs J in Pirrie v McFarlane[39]. Elsewhere he used other expressions to convey essentially the same meaning, such as the "governmental rights and powers belonging to the Federal executive as such"[40] or "the rights or privileges, duties or disabilities, of the Commonwealth in relation to the subjects of the Crown"[41]. In Cigamatic[42], Dixon CJ also spoke of the "legal rights of the Commonwealth in relation to its subjects" and that expression is, as shall appear, of some use in applying the principle which he expounded.
The purpose in drawing a distinction between the capacities of the Crown and the exercise of them is to draw a further distinction between legislation which purports to modify the nature of the executive power vested in the Crown - its capacities - and legislation which assumes those capacities and merely seeks to regulate activities in which the Crown may choose to engage in the exercise of those capacities.
In Cigamatic[43] it was held that a State legislature had no power to impair the capacities of the Commonwealth executive, but at the same time it was recognised that the Commonwealth might be regulated by State laws of general application in those activities which it carried on in common with other citizens. Dixon J had earlier drawn the same distinction in Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd[44] where he said:
"In many respects the executive government of the Commonwealth is affected by the condition of the general law. For instance, the general law of contract may regulate the formation, performance and discharge of the contracts which the Commonwealth finds it necessary to make in the course of the ordinary administration of government. Where there is no Federal statute affecting the matter, an exercise of the legislative power of the State over the general law of contract might incidentally apply in the case of the Commonwealth alike with the citizen. ... There is, however, a clear distinction between the general law, the content or condition of which, though a matter for the legislatures of the States, may incidentally affect Commonwealth administrative action, and, on the other hand, governmental rights and powers belonging to the Federal executive as such."
The fundamental principle which lies behind those observations is that which was recognised in Melbourne Corporation v The Commonwealth[45], namely, that the Constitution is predicated upon the continued separate existence of the Commonwealth and the States, not only in name, but as bodies politic to which the Constitution proceeds to distribute powers of government. In the application of the principle, however, it is necessary to differentiate between the Commonwealth on the one hand and the States on the other.
For the Commonwealth is given enumerated legislative powers which by reason of their content, context or subject matter may authorise it to affect the executive capacities of a State. Where that is so, the basic principle does not afford the State any protection from an exercise of Commonwealth legislative power having that effect. In the exercise of its legislative powers the Commonwealth is supreme and its laws prevail over State laws under s 109 of the Constitution. However, Commonwealth legislative powers are impliedly restricted so as to preclude their exercise by the making of laws singling out a State or the States so as to impose a special burden on them or inhibiting or impairing the continued existence of the States or their capacity to function[46]. In that way, the States are preserved in "their position as separate governments in the system exercising independent functions"[47] subject to any Commonwealth legislative power which, on its true construction, may be exercised to affect the State.
The States, on the other hand, do not have specific legislative powers which might be construed as authorising them to restrict or modify the executive capacities of the Commonwealth. The legislative power of the States is an undefined residue which, containing no such authorisation, cannot be construed as extending to the executive capacities of the Commonwealth. No implication limiting an otherwise given power is needed; the character of the Commonwealth as a body politic, armed with executive capacities by the Constitution, by its very nature places those capacities outside the legislative power of another body politic, namely a State, without specific powers in that respect. Having regard to the fundamental principle recognised in Melbourne Corporation v The Commonwealth,only an express provision in the Constitution could authorise a State to affect the capacities of the Commonwealth executive and there is no such authorisation.
As we have said, the specific heads of power granted to the Commonwealth Parliament may as a matter of construction extend to the alteration of the capacities of the Crown in right of the States. Of course, those powers may extend to altering the capacities of the Crown in right of the Commonwealth, at all events where those capacities derive their existence from the common law and are not defined by the Constitution. Indeed, it is of the very nature of executive power in a system of responsible government[48] that it is susceptible to control by the exercise of legislative power by Parliament. The power conferred on the Commonwealth Parliament by s 78 of the Constitution is a clear example of a power pursuant to which the capacities of the Crown in right of the State could be altered. In particular, that section, with its explicit mention of "laws conferring rights to proceed against ... a State", would support Commonwealth legislation conferring a right to proceed against the Crown in right of a State within the ambit of federal judicial power. Its terms also expressly authorise legislation of a similar kind in relation to the Crown in right of the Commonwealth. Dixon J in Uther[49] suggested that the bankruptcy and insolvency power granted to the Commonwealth Parliament by s 51(xvii) might extend as a matter of construction to laws excluding or reducing the priority of the Crown in right of a State in the payment of debts due to it. Obviously, that power could be relied upon to exclude or reduce the priority of the Crown in right of the Commonwealth in the payment of debts due to it. But the fundamental point made in Cigamatic[50] is that in the absence of a like power being conferred upon the States, the priority of the Crown in right of the Commonwealth in the payment of debts is not something over which the States have legislative power.
In Cigamatic this Court adopted the view which Dixon J had expressed in dissent in Uther. Both cases were concerned with the power of a State legislature to restrict or abolish a particular capacity enjoyed by the Crown in right of the Commonwealth - its prerogative right to the payment of all debts due to it in priority to all other debts of equal degree. The view which was adopted treats that prerogative as part of the definition of Commonwealth executive power going, as it does, to the rights or privileges of the Crown in right of the Commonwealth. The fact that it was a prerogative power that was involved made it plain that the capacities of the Commonwealth executive were involved. Identifying and defining prerogatives and ascertaining which of them subsist in the Crown in right of the Commonwealth may not be an exercise which can be carried out with precision. But the important consideration is whether a suggested capacity is enjoyed by the Commonwealth executive, not its character as a prerogative or otherwise. The principle that a State law cannot affect the capacities of the Commonwealth executive clearly extends beyond those rights, powers, privileges or immunities which might be described as having their origin in the prerogative.
Both in Uther and Cigamatic a distinction is drawn between State laws affecting Commonwealth executive capacities and State laws of general application regulating activities carried on by the Crown in the exercise of those capacities in the same manner as its subjects. Thus in Uther[51] Dixon J said:
"The fact that the priority claimed by the Commonwealth springs from one of the prerogatives of the Crown is an added reason, a reason perhaps conclusive in itself, for saying that it is a matter lying completely outside State power. But there is the antecedent consideration that to define or regulate the rights or privileges, duties or disabilities, of the Commonwealth in relation to the subjects of the Crown is not a matter for the States. General laws made by a State may affix legal consequences to given descriptions of transaction and the Commonwealth, if it enters into such a transaction, may be bound by the rule laid down."Similarly, in Cigamatic[52], Dixon CJ said:
"If, as in modern times I think it is more correct to do, you describe [the prerogative of the Crown to priority in the payment of debts] as a fiscal right belonging to the Commonwealth as a government and affecting its Treasury, it is a question of State legislative power affecting to control or abolish a federal fiscal right. It is not a question of the authority o[r] the power of a State to make some general law governing the rights and duties of those who enter into some description of transaction, such as the sale of goods, and of the Commonwealth in its executive arm choosing to enter into a transaction of that description. It is not a question of the exercise of some specific grant of power which according to the very meaning of the terms in which it is defined embraces the subject matter itself: for it is not the plan of the Constitution to grant specific powers to the States over defined subjects. It is, I think, a question which cannot be regarded as simply governed by the applicability of the principles upon which Melbourne Corporation v The Commonwealth[53]depended. In truth it imports a principle which if true would apply generally with respect to the legal rights of the Commonwealth in relation to its subjects."In that passage Dixon CJ spoke of the legal rights of the Commonwealth in relation to its subjects. Sometimes that relationship will be one of equality: for example, the capacity of the Crown to enter into contracts is no more or less than that of its subjects. Sometimes the relationship will be one of privilege or immunity on the part of the Crown alone[54]: for example, the right to the payment of debts in priority to others. Where the relationship is one of privilege or immunity it is immediately apparent that any diminution of the privilege or immunity will alter the relationship of the Crown with its subjects. But it is equally so when the relationship is one of equality and the Crown is singled out and treated differently, for the relationship then ceases to be one of equality.
When Dixon CJ spoke of general laws he meant laws of general application which bind the Crown and its subjects alike. Such laws are laws which do not have an impact upon any relationship of equality. But a State law which discriminates against the Commonwealth government and imposes a disability upon it will have an impact upon such a relationship and will constitute an interference with its executive capacities. In the same way, a Commonwealth law which discriminates against a State and imposes a disability upon it will constitute an interference with State executive capacities. Thus in Queensland Electricity Commission v The Commonwealth[55] a Commonwealth law which discriminated against the State of Queensland restricting the remedies available to the State in relation to the settlement of industrial disputes was, by implication, held to be beyond the power of the Commonwealth parliament under s 51(xxxv) of the Constitution. Similarly, in Melbourne Corporation v The Commonwealth a Commonwealth law which placed a special disability upon States by, in effect, preventing them from banking with a private bank, was held to interfere with their governmental functions and to be invalid. On the other hand, as Dixon J pointed out[56], if the Commonwealth lawfully established a monopoly in banking the States would have to put up with it.
There is nothing in the principles recognised in Melbourne Corporation v The Commonwealth or in any extrapolation of those principles to be found in the judgment of Dixon J in Uther or in the reasons of the majority in Cigamatic which would suggest that the Crown or its agents enjoy any special immunity from the operation of laws of general application, State or federal. Indeed, the contrary is affirmed. The rule of law requires such a result. In A v Hayden[57] Murphy J described as elementary the principle that:
"The executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land."Of course, the laws of the land are not confined to the laws of the Commonwealth but include the common law and the statute law in force in each of the States. Thus in Pirrie v McFarlane[58]a person acting in the execution of his duties as a member of the Royal Australian Air Force was held to be bound by the provisions of a Victorian Act requiring him to hold a driver's licence when driving a vehicle on a public highway in the course of those duties. As Starke J observed[59]:
"All the State has done in this case is to regulate the use of motor-cars and to require all citizens to observe provisions for the preservation of public safety and security. The Act is directed to acts of a purely local character, and its object is peculiarly within the authority of the State."
Whilst the principle that executive power must be exercised in accordance with the law applies to both Commonwealth and State governments, the Commonwealth enjoys a paramount position within its area of legislative competence because of s 109 of the Constitution. A valid Commonwealth law will prevail over any inconsistent State law. Thus, if there had been a law validly enacted under the defence power[60] relieving servicemen of the obligation to hold drivers' licences when acting in the execution of their duties, the result in Pirrie v McFarlane would have been different.
Also it must be kept in mind that there is still a presumption that the Crown is not bound by the general words of a statute. It is a presumption that extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation[61]. The presumption was previously thought to have hardened into a rule of construction such that it could only be rebutted by a contrary intention expressly stated or made manifest from the very terms of the statute. However, in Bropho v Western Australia[62] it was recognised that whatever justification there may have been for such an inflexible rule of construction when the functions of the Crown were more restricted, it had little relevance:
"to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown. ... [T]he historical considerations which gave rise to a presumption that the legislature would not have intended that a statute bind the Crown are largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and where it is a commonplace for governmental commercial, industrial and developmental instrumentalities and their servants and agents, which are covered by the shield of the Crown either by reason of their character as such or by reason of specific statutory provision to that effect, to compete and have commercial dealings on the same basis as private enterprise."Thus in Bropho[63] it was held that the presumption has such a weak operation where the activities regulated by statute are of a commercial or entrepreneurial kind such as are engaged in by the Crown and its subjects alike, that its applicability, at least in an area where the Crown acts through its instrumentalities and their employees, will represent little more than a starting point for the ascertainment of the relevant legislative intent.
Yet in The Commonwealth of Australia v Bogle[64] Fullagar J, with whom Dixon CJ and Webb and Kitto JJ agreed, denied that a State statute might bind the Commonwealth. He was speaking generally, and not of a State statute purporting to interfere with the executive capacities of the Commonwealth. Indeed, in direct contrast with observations made in the authorities discussed above, he said[65]:
"To say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception."Those words are obiter and are, in any event, contrary to the later decision of this Court in Cigamatic. They form no part of the reasoning leading to the actual conclusion in Bogle and in the light of Cigamatic it can hardly be said that Dixon CJ and Kitto J, in agreeing to the reasoning and conclusion of Fullagar J in Bogle, were assenting to that proposition.
In any event, and with the greatest of respect, the proposition is insupportable. Of course, as a matter of construction and aided by the presumption which we have discussed, a court may conclude that a statute was not intended to bind the Crown, but that is not to say that a State parliament lacks the power to bind the Crown in right of the Commonwealth and its agencies. It cannot do so where the result would affect the executive capacities of the Commonwealth for the reasons already given. But the Commonwealth executive is not above the law and where a State statute is applicable it forms part of the law.
The reason given by Fullagar J for the view which he expressed is that the Crown in right of a State is bound by a State statute (provided it extends to the Crown as a matter of construction) because the Crown has assented to the statute whereas the Crown in right of the Commonwealth has not assented to the State statute and is thus not bound[66]. However, the Crown, whether in right of a State or the Commonwealth, acts as part of the legislature when it assents to legislation. Once a statute is validly passed by the legislature (for which purpose the assent of the Crown is necessary) it passes into law and its binding force upon the Crown, whether in right of the Commonwealth or a State, cannot be dependent upon the assent of the executive government. The reason why a Commonwealth statute extending to the Crown binds the Commonwealth executive is to be found in the supremacy of parliament over the executive, such supremacy being exercised by legislation passed pursuant to power conferred on the Parliament by the Constitution, not the assent of the Crown as part of the parliamentary process. Within the scope of its grant of legislative power, the parliament of a State is no less supreme than the Parliament of the Commonwealth[67], although State legislation which is inconsistent with Commonwealth legislation is inoperative under s 109 of the Constitution to the extent, and during the continuance, of the inconsistency. It was to s 109 that Dixon J was referring in Uther[68] when he said that "supremacy, where it exists, belongs to the Commonwealth". And, of course, by exercising the legislative power granted to it by the Constitution the Commonwealth Parliament can legislate to exclude the operation of a State law with respect to the Commonwealth executive or its agencies. But that is a very different thing from saying, as Fullagar J did, that a State legislature cannot enact legislation which is binding on the Commonwealth in the same way as it is binding upon a "subject of the State"[69].
Fullagar J in Bogle sought to support his view by observing[70] that "it is surely unthinkable that the Victorian Parliament could have made a law rendering the Commonwealth liable for torts committed in Victoria". That, however, is to disregard the distinction, which is fundamental to the decision in Cigamatic, between the capacities of the executive government and the exercise of them. The immunity of the Crown from liability in tort, however dubious its origins[71], is a prerogative of the Crown[72] operating at common law to define the relationship between the Crown and its subjects in a manner analogous to the Crown entitlement to priority in the payment of debts. In that way it involves the capacities of the Crown. It is for that reason that, supposing it not to have been abrogated by statute, the immunity of the Crown in right of the Commonwealth from liability in tort would lie outside the power of a State legislature and not for the reason that a State legislature cannot bind the Crown in right of the Commonwealth.
In an effort to recognise practical realities in a situation in which the Commonwealth executive increasingly engages in transactions upon the same basis as ordinary citizens in a State, Fullagar J acknowledged that the Commonwealth may be "affected by State laws" in, for example, entering into a contract in a State[73]. But it is impossible to say what is meant by "affected by State laws" if it does not mean that the Crown in right of the Commonwealth is bound by them. As we have said, it is not a matter of choice for the Commonwealth executive whether or not it is bound by the law of the land. If in regulating activities engaged in by the Crown and its subjects alike a State statute extends as a matter of construction to the Crown in right of the Commonwealth, then that Crown is bound by the statute in the same way as the subject is bound, subject always to any inconsistency with a valid Commonwealth law.
Nothing has emerged in this case to indicate any purported alteration or denial of the executive capacity of the Crown in right of the Commonwealth by the provisions of the Residential Tenancies Act. The DHA is the creature of the Defence Housing Authority Act and that Act is predicated upon the existence of a legal system of which the Residential Tenancies Act forms a part. The latter Act does nothing to alter or deny the function of the DHA, notwithstanding that it regulates activities carried out in the exercise of that function in the same way as it regulates the same activities on the part of others. If, and to the extent that, the DHA in carrying out its functions is acting in the exercise of the executive capacity of the Commonwealth, the Residential Tenancies Act neither alters nor denies that capacity notwithstanding that it regulates its exercise.
Section 64 of the Judiciary Act
The express provision in s 4 of the Residential Tenancies Act that the Act binds the Crown in all its aspects relieves us of the need to determine whether the DHA constitutes the Crown or an emanation of the Crown for the purpose of applying the presumption that a statute expressed in general terms is not intended to bind the Crown. That presumption, if applicable, is clearly rebutted in this case by s 4, both in the case of the Crown in right of the State and the Crown in right of the Commonwealth. Nor do we think it is necessary to determine whether the DHA constitutes the Commonwealth for the purposes of s 64 of the Judiciary Act. Section 64 provides:
"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."The question whether the DHA is to be regarded as the Commonwealth for the purposes of s 64 would fall to be answered by seeking to ascertain the intention of the legislature from the provisions of the Defence Housing Authority Act. As Kitto J put it in Inglis v Commonwealth Trading Bank of Australia[74]:
"is it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot realistically be applied to that which the corporation does?"
There is much to be said for the view that the DHA falls into the latter category, having regard to the function which it performs, the limited control exercised by the Minister and the requirement that it perform its function in accordance with sound commercial practice. But for the reasons which we have given, the provisions of the Residential Tenancies Act apply to it generally whether or not it is the Commonwealth for the purposes of s 64. Furthermore it is unnecessary to determine whether s 64 applies otherwise. We very much doubt whether proceedings before the tribunal are judicial proceedings rather than proceedings of an administrative tribunal so that they might be said to constitute a suit within the meaning of s 64. But in the end it does not matter because in either event the DHA is bound generally by the Residential Tenancies Act and the tribunal has jurisdiction over it.
For these reasons we would discharge the order nisi for a writ of prohibition.
McHUGH J.
The question in this application for the issue of a writ of prohibition is whether the first respondent, the Residential Tenancies Tribunal of New South Wales ("the Tribunal"), a body established by the Residential Tenancies Act 1987 (NSW) ("the Act"), has jurisdiction to make two orders against the Defence Housing Authority ("the Authority"). The orders are sought by the second respondents, Mr and Mrs Henderson. They have commenced proceedings in the Tribunal seeking an order that the Authority permit them to inspect premises at Epping in New South Wales which Mr Henderson leases to the Authority. They also seek an order that the Authority provide them with a copy of the key to the premises.
The Authority contends that it is not bound by the Act and that the Tribunal has no jurisdiction to make the orders sought. It asks this Court to make absolute an order nisi calling on the respondents to show cause why they should not be prohibited from further proceeding with the hearing of the proceedings in the Tribunal.
The Authority contends that, in so far as the Act purports to apply to the Authority, it is inconsistent with the Defence Housing Authority Act 1987 (Cth) ("the Housing Authority Act") and to that extent invalid by operation of s 109 of the Constitution. Second, the Authority contends that, in so far as the Act purports to apply to the Authority, it is invalid because it deals with a matter which s 52(ii) of the Constitution places within the exclusive power of the Parliament of the Commonwealth. Third, relying on the principle laid down in The Commonwealth v Cigamatic Pty Ltd (In Liq)[75], the Authority contends that, in so far as the Act purports to apply to the Authority, it is "invalid by reason of the implied constitutional immunity of the Commonwealth from the application of State legislation". Fourth, the Authority contends that s 64 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") does not apply to proceedings in the Tribunal. Section 64 enacts:
"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."
The Authority contends that s 64 does not apply because the Tribunal is not a court exercising federal jurisdiction in a suit to which the Commonwealth is a party.
For the reasons given by Dawson, Toohey and Gaudron JJ the first two grounds must be rejected. For the reasons set out below, I am of the opinion that the third ground also fails. That being so, while it is strictly unnecessary to determine whether s 64 of the Judiciary Act applies in the proceedings in the Tribunal, in my opinion, that section does not apply to the proceedings between the Hendersons and the Authority.
The background to the proceedings
Section 11(1) of the Housing Authority Act establishes the Authority as a body corporate. It provides:
"The Authority:
(a) is a body corporate with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name."
The Authority leases premises at Epping in New South Wales from Mr Henderson under a lease for a term of 10 years. Clauses 4.1 and 4.2 of Annexure A to the lease provide:
"4.1 The Lessor acknowledges that he is aware that the Lessee has leased the subject premises in the context of the function of the Lessee to provide residential dwelling units to the Commonwealth of Australia for occupation by personnel of the Australian Defence Services and the Department of Defence ('Defence Personnel').
4.2 The Lessor accordingly consents unconditionally to:-
4.2.1 the Lessee sub-letting the subject premises to the Commonwealth in pursuance of the provisions of the arrangement between the Lessee and the Commonwealth covering the function referred to in clause 4.1 hereof; and
4.2.2 the Commonwealth entering into a tenancy agreement or a series of agreements with Defence personnel in the form of 'Uniform Tenancy Agreement for Service Members' currently in use for that purpose, but on condition that the term of any such sub-lease and any such tenancy agreement shall not exceed the term of this Lease less one (1) day."
The lease is a "residential tenancy agreement" within the meaning of s 3(1) of the Act. During the currency of such an agreement, the landlord is prohibited from entering the residential premises except as permitted by s 24 of the Act[76]. Section 24(1)(b) enacts that it is a term of every residential tenancy agreement that the landlord may enter the residential premises to inspect them, on not more than four occasions in any period of 12 months, provided the tenant has been given not less than seven days' notice on each occasion. However, a landlord may apply to the Tribunal to "make an order authorising the landlord or any other person to enter the residential premises"[77].
The Act also makes it a term of every residential tenancy agreement that a copy of the key to the premises shall be given by the landlord to the tenant, except where the tenant consents to not being given a copy of the key or the Tribunal authorises a copy not to be given[78]. A landlord under such an agreement may also apply to the Tribunal to make an order requiring a copy of the key to be given to him or her[79]. The Tribunal can only make such an order if it is satisfied that it is reasonable in the circumstances to do so[80].
The Hendersons seek orders against the Authority pursuant to the provisions of ss 24(4) and 29(5)(c) of the Act.
Cigamatic
It is settled doctrine that the States have no constitutional power to bind the Commonwealth[81]. In the absence of a grant of power, express or implied, no polity within a federation has the power to bind another polity within that federation. Within their respective domains, the polities that make up a federation are regarded as sovereign. Because that is so, it is a necessary implication of the document that creates the federation that no polity in that federation can legislate for another. Federalism is concerned with the allocation of legislative power, and it is a natural and, to my mind, necessary implication of a federation that no polity can legislate in a way that destroys or weakens the legislative authority of another polity within that federation. As Isaacs J pointed out in Pirrie v McFarlane[82]:
"[W]here by the one Constitution separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended, in the absence of distinct provision to the contrary, to destroy or weaken the capacity or functions expressly conferred on the other. Such attempted destruction or weakening is prima facie outside the respective grants of power."
Before the Engineers' Case[83], this rule was regarded as a fundamental rule of constitutional law in this country, as applicable to the Commonwealth as it was to the States. But it is a rule that arises by implication from the nature of a federation. In the event of inconsistency with an express term of the document that creates the federation, it must give way. That was all that the Engineers' Case decided. This Court held in that case that, having regard to the affirmative grants of power to the Commonwealth which are contained in the Constitution, the States could not rely on the implication to resist the application of federal laws. Nevertheless, as Melbourne Corporation v The Commonwealth[84]demonstrated, the States are not wholly unprotected by the implication, for the Commonwealth cannot "make a law aimed at the restriction or control of a State in the exercise of its executive authority". Dixon J thought[85] that this modification of the Engineers principle of construction could "be plainly seen in the very frame of the Constitution".
It may be that Engineers was wrong in holding that the grant of affirmative powers to the Parliament of the Commonwealth was a sufficient indication of inconsistency with the implication that no polity in the Australian federation could bind another. Perhaps too little weight was given to the words "subject to this Constitution" in s 51. I do not think that this is the case. But it is too late in the history of the federation to re-visit that argument. If Engineers was a wrong turning, only a constitutional referendum can put the Constitution back on the true road. While Engineers departed from the early doctrine of the Court and decided that the Commonwealth can bind the States, it does not follow that the States are able to bind the Commonwealth. If Engineers had been decided the other way, I doubt that anybody would suggest that a State can bind the Commonwealth. However, the fact that legislation of the States cannot of its own force bind the Commonwealth does not mean that State legislation may not attach legal consequences to the activities of the Commonwealth Executive.
If the Parliament of the Commonwealth authorises the Executive Government to carry out an activity, its legislation, in the absence of an indication to the contrary, will be read as indicating that the Executive is to be bound by the common law rules and statutes applying in the States. The Constitution is framed on "the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute"[86]. The Constitution itself is informed by the common law as Sir Owen Dixon has explained[87]:
"We do not of course treat the common law as a transcendental body of legal doctrine, but we do treat it as antecedent in operation to the constitutional instruments which first divided Australia into separate colonies and then united her in a federal Commonwealth. We therefore regard Australian law as a unit. Its content comprises besides legislation the general common law which it is the duty of the courts to ascertain as best they may ... The anterior operation of the common law in Australia is not just a dogma of our legal system, an abstraction of our constitutional reasoning. It is a fact of legal history."
That being so, it is axiomatic that, subject to a contrary legislative intention, the common law is binding on the executive activities of the Commonwealth government. If federal legislation authorises a Commonwealth instrumentality to buy land, sell goods or enter into contracts, the common law rules concerning those matters are taken as binding the Commonwealth unless the legislation indicates to the contrary. Similarly, federal legislation will be construed as indicating that Commonwealth executive activity is to be carried out in accordance with the existing statute law of the State unless the legislation indicates to the contrary. In such cases, State law may apply to the Commonwealth even when it takes the form of imposing affirmative duties on the Commonwealth government.
Moreover in some cases, quite apart from the operation of s 64 of the Judiciary Act, the terms of federal legislation may indicate that State law is to apply during the continuance as well as the creation of a relationship between the Commonwealth and a citizen. In such cases, if a question arises as to whether a particular State provision applies to the Commonwealth, the matter is resolved by recourse to s 109 of the Constitution.
A different area is reached, however, when State laws purport to alter rights acquired by the Commonwealth as the result of executive activity or to fetter an executive capacity or power of the Commonwealth where the source of authority for that activity, capacity or power is s 61 of the Constitution rather than federal legislation. These cases fall outside s 109 and are determined by the fundamental constitutional principle expounded in Cigamatic. That case decided that the States cannot legislate so as to abolish the Commonwealth's prerogative right to priority of payment "when in any administration of assets debts of equal degree due to the Crown and due to subjects of the Crown come into competition"[88]. Dixon CJ said[89] that "to treat those rights as subject to destruction or modification or qualification by the legislature of a State must mean that under the Constitution there resides in a State or States a legislative power to control legal rights and duties between the Commonwealth and its people". His Honour went on to say[90]:
"It is, I think, a question which cannot be regarded as simply governed by the applicability of the principles upon which Melbourne Corporation v The Commonwealth[91]depended. In truth it imports a principle which if true would apply generally with respect to the legal rights of the Commonwealth in relation to its subjects. I do not speak of legal rights which are the immediate product of federal statute and so protected by s 109 of the Constitution."
In my view, there can be no doubt that in this passage his Honour was declaring that the States have no power to alter legal rights or obligations existing between the Commonwealth and its subjects even though they are not the immediate product of a federal statute. Just as the States cannot alter the common law right of the Commonwealth to priority in the payment of its debts, so they cannot alter the existing contractual or proprietary rights and obligations of the Commonwealth in relation to its subjects that arise from the exercise of the executive power conferred by s 61 of the Constitution. It would be absurd to suppose that Dixon CJ, while denying that the States could alter the Commonwealth's common law priority in payment of the debt, accepted that the States could alter the common law rights of the Commonwealth that gave rise to the debt.
Kitto and Windeyer JJ agreed with the judgment of Dixon CJ. Menzies J said[92] that "the Commonwealth Constitution does not permit a State parliament to deprive the Crown in right of the Commonwealth of its prerogative rights". Owen J agreed[93] with the judgment of Menzies J. Although the terms of the judgment of Menzies J are narrower than those of Dixon CJ, logically it is impossible to see any ground for distinguishing between the common law prerogative rights of the Crown and the rights conferred by s 61 of the Constitution. That being so, the judgment of Dixon CJ should be regarded as the law of this country even if it is not strictly the ratio decidendi of Cigamatic.
It follows from Cigamatic that, once the executive power of the Commonwealth arising from s 61 of the Constitution has authorised a relationship creating rights and duties, a State has no power to alter that relationship even by a law that operates generally within the State. I do not think that the validity of this proposition turns on any distinction between the capacities of the Commonwealth and the exercise of them. It is not a distinction which I find illuminating in this constitutional context. Nor can I see anything in the judgment of Dixon CJ in Cigamatic which supports such a distinction.
The executive capacity of the Commonwealth can only mean its legal right or power to do or refrain from doing something. I cannot see any constitutional rationale for a doctrine that would hold, for example, that the States cannot prevent the Commonwealth from entering into a specific class of contract but can alter the legal rights and obligations of the Commonwealth and the subject once they have entered into a contract of that class. Moreover, the distinction between a capacity of the Commonwealth and its exercise is not easily drawn. If a State law prevents the Commonwealth from using its contractual right to forfeit a lease or terminate an employment, is the State law fettering a Commonwealth capacity or only the exercise of it?
[110] s 124(2), (3) of the Act.
[111] (1962) 108 CLR 372.
[112] State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 648-649.
[113] Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169; see also John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93. Federal jurisdiction which is conferred or invested by laws of the Parliament under ss 76 and 77 of the Constitution, including that of State courts, is protected by s 109 of the Constitution as well as by Ch III: Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 479; Kable v Director of Public Prosecutions (NSW) (1996) 70 ALJR 814 at 863; 138 ALR 577 at 644.
[114] Section 2 of the Constitution provides for the Governor-General to have and to exercise in the Commonwealth during the Queen's pleasure such powers and functions as may be assigned to him. Whatever now be the scope for this provision, it is expressed to be "subject to this Constitution" and thus to s 61.
[115] Barton v The Commonwealth (1974) 131 CLR 477 at 498.
[116] Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 230.
[117] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 321.
[118] (1922) 31 CLR 421 at 440.
[119] Bill of Rights (1689), 1 Will & Mary sess 2 c 2; Crown and Parliament Recognition Act (1689), 2 Will & Mary c 1; see Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466.
[120] (1977) 139 CLR 362.
[121] (1977) 139 CLR 362 at 406.
[122] (1948) 76 CLR 1.
[123] (1969) 119 CLR 334 at 335-336.
[124] (1947) 74 CLR 408 at 417.
[125] (1951) 84 CLR 140 at 146.
[126] (1951) 84 CLR 140 at 146.
[127] (1951) 84 CLR 140 at 153.
[128] (1953) 89 CLR 229.
[129] The terms under which the Commonwealth held the leases of the properties with which the litigation in Bogle was concerned do not fully appear from the report. No argument was presented that the property of the Commonwealth of which Commonwealth Hostels Ltd was in possession and control were "places acquired by the Commonwealth for public purposes" so that the Parliament had exclusive power to make laws with respect to them within the meaning of s 52(i) of the Constitution. See Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 25; 140 ALR 189 at 221-222.
[130] (1953) 89 CLR 229 at 267-268.
[131] (1953) 89 CLR 229 at 281-282.
[132] (1923) 32 CLR 1.
[133] (1923) 32 CLR 1 at 8; see also at 13 per Higgins J, 20-21 per Rich J. See further as to the Federal Capital Commission established as a body corporate by s 5 of the Seat of Government (Administration) Act 1924 (Cth), Pitcher v Federal Capital Commission (1928) 41 CLR 385 at 389, 393-394, 394-395.
[134] (1953) 89 CLR 229 at 282.
[135] The Authority Act is administered by the Minister for Defence under the Administrative Arrangements Order, Commonwealth of Australia Gazette, No S93, 11 March 1996.
[136] Repatriation Commission v Kirkland (1923) 32 CLR 1 at 21; see also Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170 at 191-192.
[137] See Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 117-119; Richardson, "The Executive Power of the Commonwealth" in Zines (ed), Commentaries on the Australian Constitution, (1977) 50 at 82-85.
[138] (1962) 108 CLR 372 at 378.
[139] The particular privilege or prerogative right at issue in Cigamatic later was qualified by s 3(a) of the Crown Debts (Priority) Act 1981 (Cth), which subjected the Commonwealth Crown to any State law relating to the order in which debts or liabilities of a body were to be paid or discharged.
[140] (1962) 107 CLR 46.
[141] Repatriation Commission v Kirkland (1923) 32 CLR 1 at 8.
[142] (1962) 108 CLR 372 at 378.
[143] In South Australia v The Commonwealth ("the First Uniform Tax Case") (1942) 65 CLR 373 at 423, Latham CJ said that any activity might become a function of government if the legislature so desires and that there was no general opinion as to what were the essential functions, capacities, powers or activities of an organised state. In Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 74, Starke J declared that "[w]hen a government acts under its constitutional power then its activities are governmental functions", and in Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 275, Windeyer J said there was no firm historical foundation for any distinction in law between those functions "which are properly or essentially governmental and those which are not". See also Bropho v Western Australia (1990) 171 CLR 1 at 19.
[144] See, for example, in New South Wales, the Civil Service Act 1884 (NSW), the Public Service Act 1895 (NSW), the Public Service Act 1902 (NSW), the Public Service Act 1890 (Vic), the Public Service Act 1915 (Vic), The Public Service Act 1896 (Q), The Public Service Act 1922 (Q), the Public Service Act 1916 (SA), and Director-General of Education v Suttling (1987) 162 CLR 427 at 437-438; cf, as to the continued use in the United Kingdom of the prerogative in the conduct of the Civil Service, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 397-400, 407, 411, 416-419; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 214; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Finn, "Myths of Australian Public Administration" in Power (ed), Public Administration in Australia: a watershed, (1990) 41 at 52-53.
[145] Finn, Law and Government in Colonial Australia, (1987) at 58. In colonial Queensland there were over 40 such statutes: Finn, "Myths of Australian Public Administration" in Power (ed), Public Administration in Australia: a watershed, (1990) 41 at 50.
[146] For example, the City Members and Suburban Members of The Board of Water Supply and Sewerage constituted by ss 5 and 6 of the Metropolitan Water and Sewerage Act 1880 (NSW).
[147] Finn, Law and Government in Colonial Australia, (1987) at 59.
[148] See Sweeney v Board of Land and Works (1878) 4 VLR(L) 440 at 447; Victorian Woollen and Cloth Manufacturing Co v Board of Land and Works (1881) 7 VLR(L) 461 at 468.
[149] "A Century of Victorian Law", (1934) 16 Journal of Comparative Legislation and International Law, 3rd series, 175 at 189.
[150] (1992) 174 CLR 219 at 230-231.
[151] (1906) 4 CLR 488 at 535.
[152] See Lebron v National Railroad Passenger Corporation 130 L Ed 2d 902 at 922 (1995) where reference is made to the statement in Bank of the United States v Planters' Bank of Georgia 22 US 904 at 908 (1824) that, whilst the federal government held shares in the first Bank of the United States, "the privileges of the government were not imparted by that circumstance to the bank".
[153] (1953) 89 CLR 229 at 259.
[154] (1925) 36 CLR 170.
[155] cf Cain v Doyle (1946) 72 CLR 409 at 419, 420-421, 425; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 265; Bropho v Western Australia (1990) 171 CLR 1 at 26-27; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 71 ALJR 56 at 60-61, 64-65, 74; 140 ALR 129 at 135-136, 141, 154.
[156] (1925) 36 CLR 170 at 202-203.
[157] Bogle (1953) 89 CLR 229 at 260.
[158] (1940) 63 CLR 278 at 308.
[159] (1947) 74 CLR 508 at 528.
[160] cf Uther (1947) 74 CLR 508 at 521; Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 108-112.
[161] The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 440; cf as to a law of the Commonwealth which establishes a body which derives its powers from the complementary operation of federal and State legislation: R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 131.
[162] (1940) 63 CLR 278 at 308.
[163] (1977) 139 CLR 362 at 402, 403-404.
[164] See Finn, "Claims Against the Government Legislation" in Finn (ed), Essays on Law and Government, vol 2, The Citizen and the State in the Courts, (1996) 25 at 40-43.
[165] Maguire v Simpson (1977) 139 CLR 362 at 398.
[166] (1979) 145 CLR 172 at 223-224.
[167] See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 412 per Walsh J.
[168] The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 377 per Dixon CJ.
[169] Meagher and Gummow, "Sir Owen Dixon's Heresy", (1980) 54 Australian Law Journal 25; see also Zines, "Sir Owen Dixon's Theory of Federalism", (1965) 1 Federal Law Review 221; Zines, The High Court and the Constitution, 4th ed (1997) at 363-364.
[170] In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529-530 per Dixon J (dissenting); The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 377-378 per Dixon CJ with the concurrence of Kitto and Windeyer JJ.
[171] Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 524; cf Gummow "The Nature and Operation of Prerogative Powers in the Federal System. The Commonwealth of Australia v Cigamatic Pty Ltd", (1964) 4 Sydney Law Review 435.
[172] Lane, Some Principles and Sources of Australian Constitutional Law (1964) at 258.
[173] s 4.
[174] Real Property Act 1900 (NSW), s 36. The lease (I 159755) commenced on 24 November 1992 and will terminate on 23 November 2002.
[175] RTA, s 29(5)(c).
[176] s 85(1).
[177] s 117A.
[178] cf R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36.
[] 179 (1962) 108 CLR 372.
[180] Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 598 per McHugh JA.
[181] "He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has ... [given] his Assent to their acts of pretended Legislation ... [f]or quartering large bodies of armed troops among us ...".
[182] The other departments were to be transferred "[on] a date or dates to be proclaimed by the Governor-General".
[183] For example ss 51(vi).
[184] For example War Service Homes Act 1918 (Cth), subsequently Defence Service Homes Act 1918 (Cth).
[185] Department of Housing and Construction; Department of Local Government and Administrative Services; Department of Finance; and Department of Territories.
[186] Task Force on Australian Public Service and Defence Force Housing Programs, Interim Report of Program Effectiveness Review (1985) at 49-50.
[187] Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence, House of Representatives, Parliamentary Debates (Hansard), 18 March 1987 at 1052.
[188] Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence, House of Representatives, Parliamentary Debates (Hansard), 18 March 1987 at 1053.
[189] Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence Science and Personnel, House of Representatives, Parliamentary Debates (Hansard), 27 October 1987 at 1516.
[190] DHAA, s 4.
[191] DHAA, s 11(1).
[192] DHAA, s 5(1).
[193] DHAA, s 5(2).
[194] DHAA, s 6.
[195] DHAA, s 7(1).
[196] DHAA, s 7(2).
[197] DHAA, ss 8, 9 and 10.
[198] Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 428-429; Singer v Statutory Offices Remuneration Tribunal (1986) 5 NSWLR 646 at 652, 658. See also Green v Daniels (1977) 51 ALJR 463 at 467.
[199] Waters v Public Transport Corporation (1991) 173 CLR 349 at 367-370.
[200] DHAA, s 27.
[201] DHAA, s 28.
[202] DHAA, s 28(2)(a).
[203] DHAA, s 28(2)(e).
[204] DHAA, s 29.
[205] DHAA, s 30(1).
[206] DHAA, s 30(3).
[207] DHAA, s 31(1).
[208] DHAA, s 31(2).
[209] DHAA, s 31(3).
[210] DHAA, s 31(4).
[211] DHAA, s 32(1).
[212] DHAA, s 35.
[213] DHAA, ss 36, 37.
[214] DHAA, s 37(3).
[215] DHAA, s 38.
[216] DHAA, s 45.
[217] DHAA, s 47; see also s 54.
[218] DHAA, s 50; see also Remuneration Tribunal Act 1973 (Cth).
[219] DHAA, ss 12(1), 14(1).
[220] DHAA, s 59(1).
[221] DHAA, ss 6 and 31(3) referred to in s 59(1).
[222] DHAA, s 59(2).
[223] DHAA, ss 59(2)(b) and 59(3).
[224] DHAA, s 61.
[225] DHAA, s 63(1).
[226] Housing Management Guidelines (Provisional) ("HMG").
[227] HMG, cl 4.7.1.
[228] HMG, cl 4.7.3.
[229] HMG, cl 4.7.5.
[230] Cl 1.8.
[231] Cl 1.7.
[232] Cl 2.2.
[233] Cll 2.2.3, 2.3.
[234] Cl 2.6.4.
[235] Cl 2.6.5.
[236] Cl 4.1.
[237] Cl 4.2.
[238] Cll 4.3., 4.4.1, 4.5.1.
[239] Cll 4.4.1, 4.5.1.
[240] Cl 4.4.2.
[241] Cl 4.5.2.
[242] Cl 5.4.
[243] Cl 6.3.
[244] Cl 9.4.
[245] Cl 11.4.
[246] See for example Cl 16.3.1 (Strata Titles Act 1973 (NSW), now Strata Titles (Freehold Development) Act 1973 (NSW)).
[247] See for example Cl 11.6.
[248] The Constitution, s 75(iii).
[249] Judiciary Act 1903 (Cth), s 56(1)(b).
[250] Judiciary Act, s 64.
[251] Judiciary Act, s 80.
[252] See for example Landlord and Tenant (Amendment) Act 1948 (NSW) considered in The Commonwealth v Anderson (1960) 105 CLR 303 at 308; cf Landlord and Tenant Act 1899 (NSW), s 2A considered in The Commonwealth v Rhind (1966) 119 CLR 584 at 598.
[253] RTA, s 6(2)(f) and (g) excludes premises within the Aged or Disabled Persons Homes Act 1954 (Cth) (now Aged or Disabled Persons Care Act 1954 (Cth)) and Aged or Disabled Persons Hostels Act 1972 (Cth).
[254] RTA, s 11.
[255] RTA, s 24(1).
[256] RTA, s 24(1)(h).
[257] RTA, s 29(2).
[258] RTA, s 29(3)(b); cf s 29(5)(a).
[259] See for example RTA, Pt 5 Div 3.
[260] RTA, s 80(1).
[261] Judiciary Act, ss 56, 64.
[262] The Constitution, s 77(iii).
[263] For example Judiciary Act, s 80.
[264] RTA, s 109.
[265] See RTA, s 93(4)(b).
[266] RTA, s 93(4)(a).
[267] RTA, s 125.
[268] RTA, s 125(1) in relation to s 24(5).
[269] RTA, s 125(1) in relation to s 29(2).
[270] Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 28; 140 ALR 189 at 225-226.
[271] Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 577-578.
[272] Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 578.
[273] Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571-572; cf R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 274-275.
[274] Commonwealth of Australia Gazette (No 1), 1 January 1901 at 4; see also Constitution, s 69; cf Renfree, The Executive Power of the Commonwealth of Australia,(1984) at 190.
[275] Commonwealth of Australia Gazette (No 9),20 February 1901.
[276] See Defence Act 1903 (Cth), Pt 3 Div 2.
[277] Pursuant to the Constitution, s 64 and as contemplated by s 51(vi).
[278] Such as Pirrie v McFarlane (1925) 36 CLR 170. The Commonwealth submitted that that case was wrongly decided.
[279] Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 579.
[280] cf Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89; Australian Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263-263; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1; 140 ALR 189. See also Zines, The High Court and the Constitution, 4th ed (1997) at 372.
[281] Official Record of the Debates of the Australasian Convention,(Sydney), 6 April 1891 at 778; (Adelaide), 19 April 1897 at 920.
[282] On 9 May 1901. See Commonwealth, Parliamentary Debates (Hansard), 9 May 1901 at 5. Indeed, the departments of customs and of excise in each State were, pursuant to s 69, transferred to the Commonwealth on its establishment.
[283] Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 660-661; D'Emden v Pedder (1904) 1 CLR 91 at 108-109; Pirrie v McFarlane (1925) 36 CLR 170 at 184, 199, 221, 227-228; Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 421-422; In re Income Tax Acts (No 4) Wollaston's Case (1902) 28 VLR 357 at 377.
[284] Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571-572; cf West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 668-669.
[285] Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571.
[286] Art 1 s 10 cl 3.
[287] See Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 556.
[288] cf Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 579.
[289] For example ss 51(xxxvi), 51(xxxvii), 51(xxxix) and 52(iii).
[290] Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 583 per Starke J; Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 587-588 per Samuels JA; cf Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 660.
[291] (1985) 3 NSWLR 565 at 575-577.
[292] (1985) 3 NSWLR 565 at 589.
[293] (1985) 3 NSWLR 565 at 603.
[294] Such as ss 51(vi) and 51(xxxix).
[295] Bank of NSW v Commonwealth (1948) 76 CLR 1 at 186; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 4, 23; 140 ALR 189 at 192, 218.
[296] For example Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89.
[297] (1996) 71 ALJR 1; 140 ALR 189.
[298] Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 22; 140 ALR 189 at 217.
[299] Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1; 140 ALR 189.
[300] As was done by the Commonwealth Places (Application of Laws) Act 1970 (Cth) noted in Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 22; 140 ALR 189 at 217. See also Petroleum Retail Marketing Franchise Act 1980 (Cth), ss 8, 24 noted in Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 451.
[301] (1996) 71 ALJR 1; 140 ALR 189.
[302] Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 17, 24; 140 ALR 189 at 211, 220.
[303] Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 5; 140 ALR 189 at 193 per Brennan CJ.
[304] (1996) 71 ALJR 1 at 5; 140 ALR 189 at 193.
[305] Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 at 274-275, 287.
[306] See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489; Ex parte McLean (1930) 43 CLR 472 at 483.
[307] cf Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 477-478, 490, 522; Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 160, 161, 163; Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258.
[308] DHAA, s 7(1)(e).
[309] DHAA, s 7(1)(f).
[310] DHAA, s 7(1)(g).
[311] DHAA, s 7(1)(e).
[312] DHAA, s 7(1)(g).
[313] For example Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 265, 266-267, 287.
[314] DHAA, s 63.
[315] cf Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 157; Raptis (A) & Son v South Australia (1977) 138 CLR 346 at 358; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 71 ALJR 56 at 60; 140 ALR 129 at 135.
[316] DHAA, s 6(b).
[317] Pt 2; cf the RTA, Pt 4, Div 2.
[318] Cl 4.2; cf the RTA, s 33.
[319] Pts 5, 9; cf the RTA, s 25(1)(b).
[320] Pt 10; cf the RTA, Pt 5.
[321] For example the RTA, s 8, Pt 3; Residential Tenancies Regulation 1989 (NSW), reg 21, Sched 1 as it stood at the relevant time.
[322] Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 248, 260, 280; Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 449; see also Rumble, "The Nature of Inconsistency Under Section 109 of the Constitution", (1980) 11 Federal Law Review 40 at 72.
[323] Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 280 per Aickin J; cf R v L (1991) 174 CLR 379 at 386.
[324] cf Dao v Australian Postal Commission (1987) 162 CLR 317 at 338-339; cf Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 417; Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 451.
[325] Victoria v The Commonwealth (1937) 58 CLR 618 at 630; University of Wollongong v Metwally (1984) 158 CLR 447 at 457-458; Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 573 applied in Deep Chand v State of Uttar Pradesh [1959] AIR (SC) 648.
[326] See Rumble, "The Nature of Inconsistency Under Section 109 of the Constitution", (1980) 11 Federal Law Review 40 at 72.
[327] (1962) 108 CLR 372.
[328] (1984) 154 CLR 311 at 316.
[329] cf Ngo Ngo Ha v State of NSW (1996) 137 ALR 40 at 43. See also Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316 per Deane J; Philip Morris Ltd v Commissioner of Business Franchises (Vict) (1989) 167 CLR 399 at 409. Particular considerations apply where the challenge relates to the Constitution and its federal character: The Commonwealth v Cigamatic Pty Ltd (In Liquidation) (1962) 108 CLR 372 at 389; Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 327-328; Stevens v Head (1993) 176 CLR 433 at 461-462; McGinty v Western Australia (1996) 186 CLR 140 at 235-236.
[330] (1962) 108 CLR 372.
[331] Pirrie v McFarlane (1925) 36 CLR 170; Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278; In re Foreman & Sons Pty Ltd;Uther v Federal Commissioner of Taxation (1947) 74 CLR 508; The Commonwealth of Australia v Bogle (1953) 89 CLR 229.
[332] Victoria v The Commonwealth (1971) 122 CLR 353; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262.
[333] (1953) 89 CLR 229 at 259-260.
[334] (1985) 3 NSWLR 565.
[335] "... not to mention the dissenting judgments of Isaacs and Rich JJ in Pirrie v McFarlane".
[336] (1985) 3 NSWLR 565 at 598 per McHugh JA.
[337] For example Cigamatic (1962) 108 CLR 372 at 380 per McTiernan J, 381-88 per Taylor J.
[338] Zines, "Sir Owen Dixon's Theory of Federalism", (1965) 1 Federal Law Review 221 at 236; Meagher and Gummow, "Sir Owen Dixon's Heresy", (1980) 54 Australian Law Journal 25 at 28; Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 524; Howard, "Some Problems of Commonwealth Immunity and Exclusive Legislative Powers", (1972) 5 Federal Law Review 31 at 31; O'Brien, "The Law Applicable to Federal Jurisdiction" (1977) 2 University of New South Wales Law Journal 46 at 64-68; O'Brien, "The Constitutional Validity of the Cross-Vesting Legislation" (1989) 17 Melbourne University Law Review 307; Doyle, "1947 Revisited: The Immunity of the Commonwealth from State Law", in Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines,(1994) 47 at 49.
[339] The Commonwealth of Australia v Bogle (1953) 89 CLR 229 at 260 per Fullagar J; see also In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528; Cigamatic (1962) 108 CLR 372 at 378.
[340] cf Zines, The High Court and the Constitution, 4th ed (1997) at 355. The uncertainty is noted in a number of decisions providing an additional reason for reconsideration of the "doctrine"; see for example Trade Practices Commission v Manfal Pty Ltd (1990) 27 FCR 22 at 29; Re Commissioner of Water Resources [1991] 1 Qd R 549 at 555; Aboriginal Legal Service v Western Australia (1993) 9 WAR 297 at 322-323; Coco v Shaw [1994] 1 Qd R 469 at 477-478.
[341] DHAA, s 11(1)(a).
[342] cf Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 274; Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 337-342; State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 644-645, 649-652.
[343] cf State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 646, 649-650.
[344] DHAA, s 6; cf Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 339-340.
[345] See for example DHAA, ss 8, 9, 10, 22, 30, 31; cf Repatriation Commission v Kirkland (1923) 32 CLR 1 at 13-15, 20-21; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 348.
[346] For example Commonwealth Hostels Ltdconsidered in The Commonwealth of Australia v Bogle (1953) 89 CLR 229.
[347] DHAA, s 5.
[348] At common law the Crown's immunity in tort did not provide a general protection to its servants. See Dicey, Introduction to the Study of the Law of the Constitution,10th ed (1959) at 193; Hogg, Liability of the Crown,2nd ed (1989) at 141-142.
[349] Howard, "Some Problems of Commonwealth Immunity and Exclusive Legislative Powers", (1972) 5 Federal Law Review 31; Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 530.
[350] (1925) 36 CLR 170.
[351] (1947) 74 CLR 508 at 528, 530.
[352] (1962) 108 CLR 372 at 377.
[353] Cigamatic (1962) 108 CLR 372 at 377-378.
[354] (1953) 89 CLR 229 at 259-260.
[355] For example by the Judiciary Act 1903 (Cth), ss 79, 80 operating in conjunction with ss 56, 57.
[356] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135; McGinty v Western Australia (1996) 186 CLR 140 at 168-169.
[357] For example McGinty v Western Australia (1996) 186 CLR 140 at 184-185.
[358] In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 530.
[359] Constitution, s 107. Cf Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82-83; Zines, The High Court and the Constitution, 4th ed (1997) at 12.
[360] Constitution, s 106.
[361] Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 524-526.
[362] The Constitution, s 109.
[363] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 155.
[364] Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 308; In re Foreman & Sons Pty Ltd;Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528; The Commonwealth of Australia v Bogle (1953) 89 CLR 229 at 260; cf Meagher and Gummow, "Sir Owen Dixon's Heresy", (1980) 54 Australian Law Journal 25 at 29.
[365] cf Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 190-192.
[366] (1953) 89 CLR 229 at 259.
[367] For example in D'Emden v Pedder (1904) 1 CLR 91.
[368] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. But see Victoria v The Commonwealth (1970) 122 CLR 353 at 396-397 per Windeyer J.
[369] As stated in The Commonwealth of Australia v Bogle (1953) 89 CLR 229 at 259 per Fullagar J.
[370] See for example Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 152. The doctrine of the indivisibility of the Crown was described as "verbally impressive mysticism" by Latham CJ in Minister for Works (WA) v Gulson (1944) 69 CLR 338 at 350-351. See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 71 ALJR 56 at 61, 71; 140 ALR 129 at 136, 150-151. For a discussion of the operation and development of the doctrine see Evatt, The Royal Prerogative, (1987) at 51-66. The difficulty of adapting concepts of sovereign immunity to States in a federation was noted by Souter J (dissenting) in Seminole Tribe of Florida v Florida 134 L Ed 2d 252 at 296, 324, 329 (1996).
[371] See R v Burah (1878) 3 App Cas 889 at 904; Hodge v The Queen (1883) 9 App Cas 117 at 132; Powell v Apollo Candle Company (1885) 10 App Cas 282 at 289-290; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-12. See also Farnell v Bowman (1887) 12 App Cas 643 at 649; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 215.
[372] In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 518-519, 523; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12-13; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 71 ALJR 56 at 61, 70-72; 140 ALR 129 at 136, 149-152. See also Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 116-117.
[373] (1985) 3 NSWLR 565.
[374] (1985) 3 NSWLR 565 at 597.
[375] Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1 at 27-28; 140 ALR 189 at 225 (in the context of the imposition of taxation).
[376] See also A v Hayden (1984) 156 CLR 532 at 540, 562, 580; Jacobsen v Rogers (1995) 182 CLR 572 at 591.
[377] See Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 262; In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 520; Victoria v The Commonwealth (1971) 122 CLR 353 at 396.
[378] (1947) 74 CLR 31.
[379] Cigamatic (1962) 108 CLR 372 at 378. See also Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 231-232; Victoria v Commonwealth (1996) 138 ALR 129 at 155-156.
[380] (1947) 74 CLR 31. See also Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; Victoria v Commonwealth (1996) 138 ALR 129 at 155-156.
[381] See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83; Victoria v The Commonwealth (1971) 122 CLR 353 at 388, 402, 411-412, 424; The Commonwealth v Tasmania (The Tasmanian Dam Case)(1983) 158 CLR 1 at 128-129, 213-215, 254, 280-281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 205-206, 212-217, 225-227, 231-236, 245-247, 258-262; Leeth v The Commonwealth (1992) 174 CLR 455 at 483-485; Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 227.
[382] See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82-83; The Tasmanian Dam Case (1983) 158 CLR 1 at 139-140, 213-215, 280-281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 232; Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453; Re Australian Education Union;Ex parte Victoria (1995) 184 CLR 188 at 228-230.
[383] R v Coldham; Ex parte Australian Social Welfare Union (1993) 153 CLR 297 at 313 applied Re Lee; Ex parte Harper (1986) 160 CLR 430 at 432.
[384] See Koowarta v Bjelke-Peterson (1982) 153 CLR 168 at 216; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 207, 217.
[385] Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; Allders International Pty Ltd v Commissioner of State Revenue (Vic) (1996) 71 ALJR 1; 140 ALR 189; cf Attorney-General for NSW v Brewery Employés Union of NSW (1908) 6 CLR 469 at 584-585; The Commonwealth v New South Wales (1923) 33 CLR 1 at 46; Nelungaloo Pty Ltd v The Commonwealth (1952) 85 CLR 545 at 562-563; Texas v White 74 US 700 (1868).
[386] See Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 226-233; Victoria v Commonwealth (1996) 138 ALR 129 at 155-156; cf In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528. But see Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 549.
[387] In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528; cf Evans, "Rethinking Commonwealth Immunity", (1972) 8 Melbourne University Law Review 521 at 557; any such law might be subject to challenge as not being one for the peace, welfare and good government of the State in question.
[388] The Canadian position is not entirely clear: see Hogg, Constitutional Law of Canada, 3rd ed (1992) at 275-276; McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977) at 37-40; cf Gauthier v The King (1918) 56 SCR 176; Dominion Building Corporation v The King [1933] AC 533. It is apparent that a provincial law of general application which does not affect any prerogative right of the Crown in right of Canada, in an area where there is no federal legislation, will bind the Crown in right of Canada: Dominion Building Corporation v The King [1933] AC 533; R v Murray [1967] SCR 262. Commentators suggest that there should be no general immunity: Hogg, Constitutional Law of Canada,3rd ed (1992) at 276; McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977) at 37-40. So far as the United States is concerned, the position is affected by the Supremacy Clause in the Constitution: South Carolina v Baker 485 US 505 at 518-519 fn 11(1988). There is no precise equivalent to this clause in the Australian Constitution. But even this does not (nor does the constitutional grant of plenary legislative power) "[bar] all state regulation which may touch the activities of the Federal Government": Hancock v Train 426 US 167 at 179-180 (1976). See also Penn Dairies v Milk Control Commission 318 US 261(1943); Alabama v King & Boozer 314 US 1 (1941). The references in argument to other federal constitutions were limited and undeveloped.
[389] Melbourne Corporation v The Commonwealth (1947) 74 CLR 31.
[390] (1962) 108 CLR 372.
[391] See ss 56, 64; Hogg, Liability of the Crown, 2nd ed(1989) at 80-84.
[392] Judiciary Act, s 64.
[393] cf China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 223-224.
[394] As McHugh JA was of the Australian Postal Commission in Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604; see also Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 338.
[395] And the State of New South Wales.
[396] See for example Tana v Baxter (1986) 160 CLR 572 at 577-578, 582; Minister for Youth and Community Services v Health & Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 548, 559-560.
[397] See also Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604 per McHugh JA.
[398] Shell Co of Australia v Federal Commissioner of Taxation [1931] AC 275 at 297; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373-378, 388; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267-269.
[399] (1995) 38 NSWLR 100 at 110-111.