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The existence and potential scope of a Commonwealth constitutional immunity from State law has been a vexed issue ever since the High Court decided its first case on this question in 1904[1] There have been major shifts in the approach of the Court over the last century, and the doctrines expounded by the Court have been subjected to an unusually large volume of academic criticism.[2] The operation of Section 64 of the Judiciary Act 1903 (Cth),[3] together with the presumption of crown immunity,[4] have in many cases prevented the question of constitutional immunity from arising.[5] There are, however, a range of situations in which the constitutional issue will still arise.[6] More importantly, the Commonwealth immunity from State law remains a highly relevant topic because of the significance of the constitutional issues that it raises. The debate over the existence and scope of the immunity reflects a broader uncertainty as to the form of federalism created by the Australian Constitution.[7]
In this article, I will argue that the Commonwealth immunity from State law must be recognised as a constitutional implication. Although there has been some acknowledgment that the immunity is an implication, there has been little consideration of the consequences that might follow from this.[8]
My contention is that the recognition that the Commonwealth immunity is a constitutional implication has major consequences. The Commonwealth immunity has developed in isolation from broader principles of constitutional law, but it must now be reconciled with these principles. Specifically, the implication of Commonwealth immunity must be drawn in a way that is consistent with the approach to implications which has been articulated by the Court; that is, any immunity must be limited to what is necessary to preserve the text and structure of the Constitution.
The structure of my argument will be as follows. Part I will outline the development of the Commonwealth immunity doctrine, and show why the doctrine must be recognised as an implication. Part II will outline the approach developed by the Court to the drawing of constitutional implications. Part III will analyse the current doctrine of Commonwealth immunity according to these principles. Part IV I will argue that, given the Commonwealth's ability to protect itself using Section 109, no form of Commonwealth immunity from State law should be implied from the Constitution.
In 1904 the Commonwealth Deputy Postmaster-General for Tasmania argued before the newly established High Court that he should not have to pay the two pence of stamp duty on his salary as required by the State of Tasmania.[9] In 1997, the Defence Housing Authority sought to convince the Court that it should not be required to submit to New South Wales residential tenancy laws which conferred on their landlord a right to inspect the premises rented by the DHA.[10] In these two cases, amongst others, the High Court has been asked to determine whether the Commonwealth Crown (or Executive), and its agents, possess any immunity from the application of State laws.
The text of the Constitution gives the Court no immediately clear answer to this question. Section 109 states that where there is a conflict between Commonwealth and State legislation, the Commonwealth legislation will prevail, but this provision gives no express guidance as to a conflict between the executive power of the Commonwealth and the legislative power of the States. Section 114, which states that neither government may tax the property of another, provides only a limited form of reciprocal immunity. Nor can the Court receive guidance from the intention of the Constitutional founders,[11] since the Constitutional Conventions contain few references to the question of intergovernmental immunities and it is unclear whether the founders intended that the Commonwealth would be bound by State law.[12]
In this Part, I will show that the Court has developed a doctrine of Commonwealth immunity based on the idea that the States lack the power to make laws that affect the Commonwealth in certain ways. I will then argue that this approach is incorrect because the States do have such power, and that the only basis for Commonwealth immunity is as an implication from the Constitution. Although there may appear to be some circularity in this discussion of whether the immunity derives from a lack of power on the part of the States or from an implication protecting the Commonwealth, as will be seen in Part II, given the Court's cautious approach to the drawing of constitutional implications, this is a crucial issue.
The most recent comprehensive consideration of the issue of Commonwealth immunity from State law by the Court was in the case of Re Residential Tenancies Tribunal (NSW) and Henderson; Ex Parte Defence Housing Authority,[13] but in order to understand this decision, it is necessary to examine the earlier cases.
In the early years of federation, the High Court applied the American doctrine of the implied immunity of instrumentalities to the Australian Constitution,[14] holding that any attempt on the part of a State to interfere with the exercise of the Commonwealth's executive or legislative authority, however minor, would be found invalid.[15]
In Amalgamated Society of Engineers v Adelaide Steamship Company Ltd ('Engineers'),[16] a majority of the Court rejected this doctrine as based on a 'vague, individual conception of the spirit of the compact.'[17] Analysing the Constitution according to the traditional principles of statutory interpretation left little room for the limitation of power according to notions such as federalism. Although the facts of the case raised the issue of State immunity from the Commonwealth, the majority stated that 'the principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters.'[18] In Pirrie v McFarlane,[19] a majority of the Court applied the Engineers decision in order to find that a Commonwealth soldier was required to hold a state driving licence.[20] As Starke J explained, 'the argument denying the power of the States to affect Commonwealth officers based upon some prohibition expressed or implied in the Constitution can no longer be sustained.'[21]
It was not long, though, before a new doctrine of intergovernmental immunities began to emerge from the judgments of Sir Owen Dixon. Following obiter dicta comments in West v Commissioner of Taxation (NSW)[22] and Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd,[23] Dixon J and a majority of the Court held in Melbourne Corporation v Commonwealth[24] that the States had a form of immunity from certain Commonwealth laws.[25] The pre-Engineers immunity had been reciprocal, but Dixon J indicated in Melbourne Corporation that the Commonwealth's immunity from the States would differ in both its origins and in its scope from the immunity possessed by the States.[26]
In the same year as Melbourne Corporation was decided, the issue of Commonwealth immunity arose before the Court in In Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation,[27] in relation to a New South Wales companies law which removed any priority for debts possessed by the Crown in right of the Commonwealth. The Crown's priority in the collection of debts is a prerogative right, and so this case raised the question of whether, as Engineers had hinted, the general principle that the States and Commonwealth could legislate for one another was subject to an exception in relation to prerogative rights.[28] A majority of the Court found that the New South Wales Act could validly abolish or restrict the prerogative right of the Crown in right of the Commonwealth to the payment of debt.[29] In the majority in Uther, Latham CJ held that, as the Commonwealth had in Section 109, a means of protecting itself against legislation which impaired or interfered with the performance of Commonwealth legislation, unlike the States, it had no need of judicial protection.[30]
Dixon J dissented in Uther, arguing that the State law was invalid in its application to the Commonwealth.[31] In contrast to Latham CJ, his Honour argued that the Commonwealth was entitled to a greater degree of protection than the States. Dixon J's reasoning proceeded in the following steps: The Australian Constitution created a federal system, and 'a federal system is necessarily a dual system'.[32] There is an initial presumption that 'in a dual political system you do not expect to find either government legislating for the other.'[33] The Constitution confers express grants of specific powers and legislative supremacy on the Commonwealth, which displaces this presumption – therefore, the Commonwealth has power to legislate in relation to the States.[34] However, Dixon J argued that the legislative power of the States has no such distinguishing characteristics – it consists only of the residue left after full effect is given to the powers granted to the Commonwealth, and a State law will be subordinate to a Commonwealth law in the case of inconsistency. Therefore the initial presumption, that one government does not legislate for the other, applies to limit State legislative power.[35]
It is particularly significant that Dixon J's reasoning in Uther made no reference to implications in favour of the Commonwealth. This was despite the fact that, in Melbourne Corporation, his Honour referred to 'the implication protecting the Commonwealth from the operation of State laws',[36] and that the statement that a federal system is 'necessarily' a dual system looks very much like an implication. Rather Dixon J's suggestion appeared to be that the States simply lack power to legislate in relation to the rights or activities of the Commonwealth.[37] His Honour put forward a number of reasons for this lack of power on the part of the States, which will be discussed below.
Sir Owen Dixon's views were confirmed in Commonwealth v Cigamatic Pty Ltd (In Liquidation),[38] a case arising on very similar facts to those in Uther, where the now Chief Justice succeeded in overruling the earlier decision.[39] 'It is not a question,' stated Dixon CJ in Cigamatic, 'of making some implication in favour of the Commonwealth restraining some acknowledged legislative power of the state.'[40] Indeed, his Honour indicated that to hold that the States did possess such power would be to 'import' and 'imply' a new proposition into the Constitution.[41]
There was a great deal of uncertainty about the scope of the immunity established in Cigamatic. In particular, it was unclear whether that decision had to be seen as overruling Pirrie v McFarlane. On a strict reading, the only proposition Cigamatic stood for was that the States were prevented from interfering with Commonwealth prerogative rights. Dixon CJ's comments, though, in particular his suggestion that the States had no power to 'control legal rights and duties as between the Commonwealth and its people', seemed to suggest a broader immunity.[42] Obiter dicta in Commonwealth v Bogle[43] (decided after Uther but before Cigamatic) seemed to provide additional support for the broader interpretation of Cigamatic, by suggesting that the immunity would apply in a situation where no Commonwealth prerogative was involved.[44] A majority of the Court in Bogle accepted that 'the State Parliament has no power over the Commonwealth.'[45] The only concession was that the Commonwealth might be 'affected' by State law, though exactly what this meant was not explained in Bogle or Cigamatic and remained very unclear.[46]
Largely because of the effect of Section 64 of the Judiciary Act 1903, it was some time before the High Court was called upon to resolve the uncertainties left in the wake of Uther, Cigamatic and Bogle.[48] When the issue finally arose in 1997, the question before the Court was whether the Residential Tenancies Act 1987 (NSW) was valid and binding on the Commonwealth Defence Housing Authority.[49] Six of the seven judges agreed that the New South Wales Act was binding on the Commonwealth agency.[50] However, there was a division of views on the scope of the Commonwealth's constitutional immunity.
A majority of the court – comprising Brennan CJ, and, in a joint judgment, Dawson, Toohey and Gaudron JJ – drew a distinction between the 'capacities' of the Commonwealth and the exercise of those capacities, and found that the States could regulate the latter only.[51] This meant that 'the Commonwealth might be regulated by State laws of general application in those activities which it carries on in common with other citizens.'[52] McHugh and Gummow JJ rejected this distinction in favour of a broader immunity principle, but limited its application by finding that the immunity would generally operate only to the benefit of persons or bodies who derived their authority from the executive, as opposed to legislative, power of the Commonwealth.[53] Kirby J rejected the Cigamatic principle altogether and argued for a reciprocal immunity based on the Melbourne Corporation principle.[54]
The majority made it clear that they saw the doctrine of the immunity of Commonwealth capacities from State law as emerging from the judgments of Sir Owen Dixon in Uther and Cigamatic. In their joint judgment, Dawson, Toohey and Gaudron JJ repeated the process of reasoning used by Dixon J in Uther. The starting point was a presumption of immunity enjoyed by all governments in a federation – although, where Sir Owen Dixon never made the precise scope of this immunity clear, their Honours were careful to emphasise that the initial presumption was not one of general immunity, but an immunity in respect of executive capacities.[55] By adopting this narrower view of the scope of the immunity, the majority ensured that the decisions in Cigamatic and Pirrie v McFarlane could be reconciled. Dawson, Toohey and Gaudron JJ then echoed Sir Owen Dixon's reasoning as to how this basic principle had a different application in respect of the States and the Commonwealth.[56]
In particular, Dawson, Toohey and Gaudron JJ clearly accepted Sir Owen Dixon's view that the Commonwealth immunity derived from a lack of power on the part of the States rather than from an implication. Their Honours stated that:
No implication limiting an otherwise given power is needed; the character of the Commonwealth as a body politic ... by its very nature places those capacities outside the legislative power of ... a State, without specific powers in that respect.[57]
Their Honours considered that:
[T]he fundamental point made in Cigamatic is that ... 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.[58]
The discussion above has demonstrated that the predominant interpretation of a Commonwealth immunity from State law is one based on a lack of power on the part of the States to regulate the Commonwealth in certain ways. This was the basis of Sir Owen Dixon's reasoning in Uther and Cigamatic, it was the view of a majority of the Court in Bogle, and it was accepted by Dawson, Toohey and Gaudron JJ in Residential Tenancies to form the ratio decidendi of that decision.
Dixon J's first argument, expressed in Uther, was that there was no possible source of State power to regulate the Commonwealth. The States could not have possessed such a power before federation since the Commonwealth sprang into existence in 1901. Nor did the Constitution confer such a power. Therefore, Dixon J suggested, such a power did not exist.[59] Meagher and Gummow have already demonstrated the weakness of this argument.[60] The source of State power to regulate the Commonwealth is the plenary power, deriving initially from Imperial legislation and confirmed by Section 107 of the Constitution, to legislate in respect of any subject matter from time to time within that power.[61] State legislative power is clearly not confined to subjects in existence when the colonies attained responsible government. If it were, the absurd result would follow that the States would be unable to regulate corporations or persons that came into existence after the nineteenth century.[62]
Dixon J's second claim was that a law adjusting the rights of the Commonwealth could not be for the 'peace, welfare and good government' of a State.[63] Meagher and Gummow have observed that this approach was inconsistent with the dual characterisation principle accepted by the Court in relation to Commonwealth powers.[64] If a Commonwealth law can admit of more than one characterisation, it is difficult to see why the same principle should not apply to a State law. It is true that a State law regulating the Commonwealth might be outside the scope of the State's plenary power over its territory. For instance, as Latham CJ suggested, a New South Wales law which purported to regulate the functions of the Governor General in summoning and dissolving the Commonwealth Parliament would not be a law for the 'peace, welfare and good government' of New South Wales.[65]
However, in Uther and Cigamatic, Sir Owen Dixon was concerned with a New South Wales law regulating the winding up of companies in New South Wales. If such a law affects the Commonwealth, it may be said to be a law about Commonwealth prerogative rights, but it remains a law about New South Wales companies. Thus while the terms of State legislative power might render some State legislation affecting the Commonwealth invalid, it is difficult to accept this argument in relation to the type of law before the court in Uther and Cigamatic.[66] It should also be noted that the Court has clearly rejected a characterisation approach as the basis for the State immunity from Commonwealth law, as based on artificial reasoning, and that essentially the same criticism applies in the case of Commonwealth immunity.[67]
An additional argument, raised initially by Fullagar J in Bogle, was that the States had no power to regulate the Commonwealth because the Commonwealth had not assented to a State law.[68] Doyle and Evans have both pointed to major flaws in this analysis.[69] Most obviously, to suggest that the Crown in right of the Commonwealth cannot be bound by legislation passed by a State legislature, is to ignore the doctrine of the indivisibility of the Crown, which was central to the reasoning of the Engineers decision.[70] It would follow from this doctrine that if the Crown in right of a State has assented to a statute, then the Crown in right of the Commonwealth is also bound.[71] Moreover, as Dawson, Toohey and Gaudron JJ observed in Residential Tenancies, the significance given to the notion of Crown assent is inconsistent with the reality of parliamentary sovereignty embodied in the Australian Constitution. The Crown is bound by a statute not because it has assented to it, but because Parliament is supreme.[72] This principle is reinforced by the fact that the Parliament of a State has the power to bind the Crown in right of another State and the Crown in right of the United Kingdom.[73]
It is my contention, therefore, that none of the arguments used in support of the view that the States lack power to bind the Crown in right of the Commonwealth stand up to critical analysis. To the contrary, under Section 107 of the Constitution, the States have retained their plenary power to make laws for their own peace, order and good governance, and, prima facie, are capable of binding the Commonwealth. This was recognised in Uther, in Pirrie v McFarlane and, implicitly, in Engineers. Any immunity possessed by the Commonwealth, therefore, must be founded upon an implication from the Constitution.
An analysis of the reasoning of Dixon J in Uther shows that the Commonwealth immunity is better understood as an implication, albeit an unacknowledged one. The starting point for his Honour was the idea that a federal system is a dual system, and that in such a system you do not expect to find either government legislating for the other. From this follows a principle of mutual immunity, modified in the case of the Commonwealth by the grant of specific powers, but applicable to the States. Of course, the Constitution does not say that the system it creates is one of 'dual federalism', or that there shall be a mutual immunity beyond Section 114. What Dixon J has done is to form a view as to what the structure of the Constitution requires, and then to imply such restrictions on power as are necessary to maintain that structure. The only difference between Sir Owen Dixon's approach and the process undertaken by the early High Court in creating the doctrine of intergovernmental immunities is that Dixon relies on a form of deduction from the Constitution rather than on American precedents in moving from the fact that the Constitution creates a federal system to the contention that governments are not entitled to regulate one another.[74]
Although Dawson, Toohey and Gaudron JJ accepted Sir Owen Dixon's claim that the immunity was based on a lack of power, several of the other judges in Residential Tenancies acknowledged that the Commonwealth immunity was based on a negative implication.[75] Kirby J clearly perceived the immunity as being based on an implication, albeit one without legitimate foundations.[76] Although McHugh J accepted most of the reasoning in Cigamatic, he realised that the Court was in fact dealing with an implication. McHugh J stated that '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 the federation legislate for another.'[77] McHugh J, then, recognised that the Cigamatic doctrine is more appropriately viewed as an implication – that the link between a particular view of the federal system and the proposition that governments cannot legislate for one another can only be one of necessary implication.[78]
It is a matter of great significance that the current doctrine of Commonwealth immunity is more correctly interpreted as an implied limitation on the power of the States than as the consequence of a lack of State power, for the Court has adopted an entirely different approach to such implied limitations than to questions of a lack of power. Sir Owen Dixon himself had accepted, in Melbourne Corporation, that an implied limitation on power must be 'compelling'.[79] In more recent years, the Court has devoted a great deal of attention to the subject of constitutional implications, and has authoritatively determined that such implications are only to be drawn where 'necessary'.
The Court has never analysed the Commonwealth immunity according to these principles. But if, as I have argued, Commonwealth immunity is an implication, then it is necessary to evaluate whether the current doctrine of immunity, or in fact any doctrine of immunity, can be reconciled with the Court's approach to implications. This Part will, first, outline the Court's approach to constitutional implications, and second, consider what is involved in this approach, in order to apply these principles to the question of Commonwealth immunity in Parts III and IV.
The first point to note is that the implication of Commonwealth immunity, identified in Part I, would share the same basic features as the implications the Court has devoted its attention to in the past – it is an implied limitation derived from a structural feature of the Constitution.[80] The immunity has generally been seen as deriving from the federal structure of the Constitution, although there have been suggestions that its origins may lie in the national character of the Commonwealth.[81] Although the Court has generally focused its attention on implications that limit the power of the Commonwealth rather than that of the States, it is clear that the same interpretative principles apply.[82]
The Court has authoritatively laid down the principles by which implications limiting power are to be drawn. In Australian Capital Television Pty Ltd v Commonwealth,[83] Mason CJ stated that 'where the implication is structural...it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure.'[84] In this case, the Court established that the provision for representative government in the Constitution required an implication of a freedom of political communication. The historical precedent that the Court relied on in the Political Broadcasts case was the implication of State immunity in the cases of Melbourne Corporation and Queensland Electricity Commission v Commonwealth.[85] In Lange v Australian Broadcasting Commission,[86] a unanimous judgment of the Court confirmed that the approach articulated by Mason CJ was the correct one.[87]
The Court in Lange also took the opportunity to clarify the precise method by which constitutional implications were to be derived:
[T]he Constitution gives effect to the institution of "representative government" only to the extent that the text and structure of the Constitution establish it. ... under the Constitution the relevant question is not, "What is required by representative and responsible government?" It is, "What do the terms and structure of the Constitution prohibit, authorise or require?"[88]
This clarification was a response to a perceived divergence of approach in the Court since the initial decisions in Political Broadcasts and its companion case, Nationwide News Pty Ltd v Wills.[89]
It is clear from the cases discussed above that the same method is to be applied to all implications, whether derived from the system of federalism created by the Constitution, or from the system of representative government.[90] Moreover, as the discussion below will show, for as long as the Court continues to accept the interpretive principles laid out in the Engineers decision, the approach endorsed in Lange is the only acceptable approach to constitutional implications.
As Stephen Donaghue has observed, 'while the necessity test is frequently invoked, it is rarely explained'. [91] Yet, in order to apply the Court's approach to implications to a new area, it is important to give some consideration to what is involved in this approach.
Despite occasional suggestions by Sir Owen Dixon that the Court should not be 'fearful' of drawing implications,[92] as Jeremy Kirk has observed, the weight of Court practice suggests a high degree of caution.[93] The necessity test represents a position of judicial restraint which is demanded both by the 'literalist' method of constitutional interpretation and by the Court's concern for its own legitimacy.[94]
As Mason J acknowledged in Queensland Electricity Commission, the requirement that implications be necessary is directly linked to the more general principles of constitutional interpretation articulated in the Engineers decision.[95] The emphasis on a 'literal' and 'legalistic' construction of the text in Engineers had, as Sir Owen Dixon observed, led some to the belief that no implications could be drawn from the Constitution.[96] Such an approach, his Honour considered, would 'defeat the intention of any written instrument, but of all written instruments a Constitution seems the last to which it could be applied.'[97] The requirement that implications be necessarily derived from the text and structure of the Constitution represents a reconciliation of the literalism of Engineers with the need to draw implications.
Ultimately, the Court's approach to implications can be traced back to the constraints imposed by its own role as the interpreter of the Constitution. If an implication lacks a foundation in the text or structure of the Constitution, then the Court will not be seen to be interpreting the Constitution, but rather to be substituting its own policy preferences for that of the democratically elected Parliament.[98] As McHugh J has acknowledged, 'if this Court is to retain the confidence of the nation as the final arbiter of what the Constitution means, no interpretation of the Constitution by the Court can depart from...what is implied by the text and structure of the Constitution.'[99]
Windeyer J suggested that the term 'making implications' was an inappropriate one because 'the avowed task [of the Court] is simply the revealing or uncovering of implications which are already there.'[100] This statement reveals the way in which the 'necessity' test can be used as a means of disguising the element of discretion inherent in drawing a constitutional implication. It is now well established that in the interpretation of the text of the Constitution, there is generally an element of subjectivity.[101] In determining what necessary implications can be extracted from that text, then, there must also be some element of discretion. The question is, how much discretion? Jeffrey Goldsworthy and Nicholas Aroney, writing in response to the 'free speech' decisions, have suggested that the 'necessity' test involves such a high degree of subjectivity that we might be led to wonder whether the test is much more than a smokescreen for judicial policymaking.[102]
Even if the criticisms of the implication of political communication are valid,[103] they do not establish that the concept of necessity is devoid of meaning, and operates only as a means of disguising policy choices. The basic problem that the critics of the implied freedom have pointed to is that, in order to give some content to the implication of representative government, the Court must look beyond the terms of the Constitution.[104] Adrienne Stone has illustrated the limits of the textual approach to implications by reference to the question of the appropriate standard of review to be applied when determining whether a law infringes the implied freedom of political communication.[105] Stone observes that the text of the Constitution simply does not provide any guidance on this question – any consistent and principled answer must depend on a view as to the values underlying the implied freedom, and ultimately, the nature of representative government. The source of such ideas must lie outside the Constitution.[106]
What these arguments show is that, where the Court is required to formulate a complete doctrine based on an implication, as it was in Political Broadcasts and the subsequent cases, the concept of 'necessity' is a very difficult one.[107] There is obviously a range of choice in determining the scope of the doctrine, and the limitations which are to be placed on it, and it may be difficult to justify any given choice as more 'necessary' than the others. But it is important to note that, in the context of the political communication decisions, there was little doubt that particular provisions of the Constitution give effect to representative government, and that some limitations must necessarily follow from these provisions.[108] Even Dawson and McHugh JJ, who disapproved of the majority reasoning,[109] accepted this proposition.[110]
The focus of this article is on the question of whether any principle of Commonwealth immunity can be said to be necessarily derived from the Constitution, rather than the appropriate form of such immunity. This inquiry, therefore, avoids the greatest difficulties associated with the concept of necessary implications. The widespread agreement that some form of freedom of political communication does flow from the provision for representative democracy suggests that an answer to the question of whether any implied limit can be found in the Constitution is more likely to be provided by an interpretation of the text of the Constitution, than is an answer to the question of the appropriate content of such a limitation. Thus, on Dawson J's reasoning in Political Broadcasts, some form of limitation must be implied, since Sections 7 and 24 of the Constitution refer to representatives being chosen, and that choice must be a true one.[111]In Part IV of this article, I will suggest that the answer to the question of whether any implication of Commonwealth immunity can be drawn also lies in the effect of a particular provision of the Constitution, namely Section 109. There is room for legitimate disagreement as to the effect of that section, but nonetheless the section does provide that answer.
In Part I, I argued that the general view of the Court – that the doctrine of Commonwealth immunity was based on a lack of State power – was incorrect, and that the immunity must be seen to be based on an implication. The first question that arises, then, is whether the form of Commonwealth immunity recognised in Residential Tenancies, as the established precedent, could simply be reformulated as an implication consistent with the test endorsed in Lange. I will argue that the majority position emerging from Residential Tenancies – that the capacities of the Commonwealth are immune from State law – is based more on the form of the impugned State law than on its substance. Therefore, this principle cannot be seen as a necessary implication from the federal structure of the Constitution; nor does it have any foundation in the text of the Constitution.
The distinction between the capacities of the Commonwealth and their exercise has been widely criticised as both unclear and unprincipled.[112] It is the latter criticism that I will focus on, because this is directly relevant to the question of whether the doctrine emerging from Residential Tenancies could be said to be a necessary implication from the Constitution.
In his judgment in Residential Tenancies, McHugh J was highly critical of the distinction drawn by the majority:
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 ... once they have entered into a contract of that class.[113]
McHugh J's example illustrates the way in which the immunity recognised in Residential Tenancies is concerned not with the substantive effect of a State law on the Commonwealth, but with what is essentially a question of the form of the State law.
In recent years, the Court has placed great emphasis on the examination of the substance rather than the form of a constitutionally impugned law.[114] As Gaudron J stated in Street v Queensland Bar Association, 'it is now accepted that in the interpretation ... of the Constitution, particularly its guarantees of freedom and the prohibitions by which those freedoms are secured, regard should be had to substance rather than form.'[115] In its interpretation of Sections 117, 90 and 92, the Court has rejected tests which focus on the legal criterion of the operation of an impugned law rather than the practical effect of the law.[116] Yet by focusing on the technical question of whether a law falls on a Commonwealth capacity, or on its exercise, the majority in Residential Tenancies have proposed a test whose focus is essentially on the legal criterion of the State law.
This question of substance and form has, largely, been addressed by the Court in the context of interpreting express limitations on power contained in the Constitution, rather than implied limits. I would argue, though, that an immunity based more on form than on substance cannot be accepted under the Court's approach to drawing constitutional implications. Since an implied limitation is derived only where it is necessary to protect a structural feature of the Constitution, the implication must operate to render void a law which, in substance, operates in such a way as to threaten that structural feature. If the question was one of form, this would, in all likelihood lead to some laws which did not actually threaten that structural feature being declared invalid, and vice versa.
The way in which an implied limit on power based largely on form fails as a necessary implication can be seen through a closer examination of the reasoning of Dawson, Toohey and Gaudron JJ in Residential Tenancies. In their joint judgment, their Honours state that the fundamental principle lying behind the capacities distinction, is that which was recognised in Melbourne Corporation, namely the principle 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.'[117]
Since this same principle also forms the basis of the state immunity recognised in Melbourne Corporation,[118] we might ask how it is that this federal principle requires that the Commonwealth possess a wider immunity than the States. Although there is a similarity between the two doctrines – for instance, both would operate to render invalid a law discriminating against the other federal entity[119] – the Commonwealth immunity is broader. A clear example of a law which would fail under the Residential Tenancies test, and be valid under the Queensland Electricity Commission test, is a law affecting the prerogatives of the Crown.[120] How can these two different formulations both be said to be necessary for the maintenance of the same feature? Dawson, Toohey and Gaudron JJ justified the derivation of these two principles from the same source on the basis of Sir Owen Dixon's argument about the effect of enumerated powers as against residual powers.[121] This argument does not, though, apply in the context of determining whether an implication is necessary. The fact that the Commonwealth has enumerated powers does not increase its need for a different and broader protection than that of the States.
Of these two forms of immunity, that recognised by the Court in Melbourne Corporation and Queensland Electricity Commission seems to be more appropriately designed to maintain the continued existence of a body politic, or in other words, to be necessary for the preservation of the federal structure provided for by the Constitution, since it is a distinction of substance rather than of form.[122] The second branch of the Melbourne Corporation principle, in particular, clearly focuses on the substantive effect of the law, and thus operates to ensure that only laws which actually threaten the continued existence of the polity are struck down by the Court.[123] In contrast, by focusing on the question of whether the State law impairs a capacity of the Crown in right of the Commonwealth, it is likely that the Commonwealth immunity will be broader than what is necessarily required by the Melbourne Corporation principle.[124] For example, it is difficult to see how the law struck down in Cigamatic could be said to have threatened the continued existence of the Commonwealth as an independent entity.
Brennan CJ was the only judge in support of the majority distinction in Residential Tenancies to suggest a possible textual basis for the Commonwealth immunity from State law. His Honour considered that the 'capacities and functions' of the Crown in right of the Commonwealth are the 'rights, powers, privileges and immunities' which are described as the 'executive power of the Commonwealth' in Section 61 of the Constitution. Brennan CJ noted that there are two possible sources of this Commonwealth executive power – a Commonwealth statute, and the power known as the royal prerogative. While the executive power of the Commonwealth may be modified by Commonwealth laws, 'it is beyond the legislative reach of the States.'[125] His Honour went on to suggest that 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 fell on the enjoyment of a Commonwealth prerogative power, the State law 'would be offensive to Section 61 of the Constitution'; if on the enjoyment of a statutory power, it would be inconsistent with the Commonwealth law conferring that power and hence invalid under Section 109.[126]
Brennan CJ did not elaborate on why it was that a State law burdening the enjoyment of the Commonwealth prerogative would be offensive to Section 61. In its terms, Section 61 does nothing more than confer the executive power of the Commonwealth on designated persons. The provision does not define the scope of that executive power, nor does it say anything about whether this executive power is to be subject to control by the States – as George Winterton has observed, Section 61 is in general 'remarkably ambiguous'.[127] Of course, the States could not exercise the executive power of the Commonwealth, because Section 61 expressly confers that power on the Governor-General. But this does not explain why the States cannot legislate to regulate and even to modify the Executive power of the Commonwealth, provided that such a law is for the 'peace, order and good government' of the State.
What Brennan CJ might have been suggesting is that an ability of the States to regulate the capacities of the Commonwealth Executive would amount to an ability to detract from what Section 61 of the Constitution confers. However, this analysis simply assumes, without any kind of justification, that the Constitution confers a power which cannot be detracted from by State laws. The reasoning is circular – Section 61 cannot simply be read to endorse a particular view of intergovernmental relations. Although it might be argued that such an inability to detract from the grant of Executive power is a necessary implication from the Constitution, this is not what Brennan CJ seems to be suggesting, and such an argument would in any case encounter the criticisms directed at this distinction above.
It is much easier to see how Section 109 would operate to render a State law burdening the Commonwealth Executive invalid. However, Brennan CJ's suggestion that such a State law would necessarily be inconsistent with the Commonwealth law conferring the executive power is difficult to accept. The Commonwealth and State laws in question would need to be analysed in order to determine whether there was some inconsistency between them. It is possible that a Commonwealth law might actually provide that it was not intended to limit the operation of a State law.[128] So, although Section 109 may often invalidate a State law burdening the capacities of the Commonwealth Executive, it does not provide a textual basis for an immunity in all cases involving such a State law.
Having suggested that the Cigamatic principle, as interpreted in Residential Tenancies, should no longer be accepted by the Court as the basis for Commonwealth immunity, in this section I will consider what principle the Court should adopt. A number of approaches have been suggested over the years, most of them involving a particular interpretation of the Cigamatic principle.[129] By contrast, Kirby J in Residential Tenancies argued for a reciprocal application of the Melbourne Corporation principle to the Commonwealth.[130]
I do not propose to consider these forms of immunity individually, but rather, in the remainder of this article, to focus on an issue that is fundamental to the question of whether there should be any form of implied Commonwealth immunity at all, that is the effect of Section 109 of the Constitution. I will argue that the operation of Section 109 renders an implication of Commonwealth immunity unnecessary. As Kirby J suggested in Residential Tenancies, 'the provision in the Constitution of a power to make laws which will override any provision of an inconsistent State law removes the necessity to imply an immunity where none is expressed.'[131] A number of academic commentators have taken a similar view.[132]
Before the decision in Cigamatic, there was a considerable amount of support for the idea that Section 109 removed the need for a doctrine of Commonwealth immunity. In rejecting a reciprocal application of the Melbourne Corporation principle to the Commonwealth in Uther, Latham CJ argued that as Section 109 places a means of protection in the hands of the Commonwealth, there is no need to invoke any principle of non interference with governmental functions.[133] The Commonwealth, which is surely capable of judging its own best interests, can legislate so as to override any State law which might involve such interference.[134] It is clear that in the period between the decision in Engineers and that in Cigamatic, the Court interpreted Engineers as requiring that the Commonwealth was bound by a State law unless there was an inconsistency between that law and a valid Commonwealth law. Thus, in Pirrie v McFarlane, the majority held that the fact that the State law in question operated on the Commonwealth defence forces was irrelevant unless there was an inconsistent Federal law, and a similar decision was reached by the majority in West when considering a State income tax law.[135]
The following sections will address a number of issues – first, whether either constitutional or practical constraints limit the ability of the Commonwealth to protect itself with the help of Section 109; and second, whether a constraint such as Section 109 is relevant in determining whether an implied immunity is 'necessary'. In determining this second issue, and in reaching a view as to whether Section 109 does operate to render an implied immunity unnecessary, I will draw on a related debate in the United States. I will argue that Section 109 does operate to render an implied limitation unnecessary.
There are few constitutional limits on the Commonwealth's ability to use Section 109 to confer immunity on the Executive. Since Section 109 will only apply to a valid Commonwealth law, the main question is whether the Commonwealth possesses sufficient legislative power to enable it to confer immunity on the Crown in right of the Commonwealth. If the Commonwealth legislature is seeking to protect the Commonwealth Executive or an agent of that executive from interference by State law it is difficult to see how the law could not be 'with respect to' a head of power. As Gibbs J noted in Victoria v Commonwealth and Hayden, 'the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth.'[136] For this reason, it is clear that the Commonwealth possesses the power to legislate so as to control the Executive, or to alter its capacities.[137] This same power would enable the Commonwealth legislature to confer immunity on the Executive.
The way in which the Commonwealth possesses the legislative power to protect itself was illustrated by Latham CJ in Uther. His Honour noted that the Commonwealth would have had power under Section 51(ii) of the Constitution, the taxation power, to provide that Commonwealth taxes were to take priority over State taxes. The provision of the New South Wales legislation conferring priority for the State in the payment of debts would then be invalid to the extent of the inconsistency.[138] We might also note that the Commonwealth would have had power under Section 51(xxxix), the incidental power, to enact a law stating that the Commonwealth's prerogative right to priority in debt was to prevail over all other rights, and this would also have had the same effect as the response suggested by Latham CJ.
The significance of Section 109 as a means for the Commonwealth to protect itself against State law is enhanced by the broad interpretation given to the section. In particular, it is now clearly established that, consistently with the principle of dual characterisation,[139] a Commonwealth law can directly and expressly exclude the operation of a State law and remain within power.[140]
It has been suggested that the Commonwealth's ability to pass overriding laws to confer immunity on the executive may in some cases be limited by practical circumstances.[141] McHugh J has argued that the difficulties faced by the Commonwealth Parliament if the Cigamatic doctrine was overturned would be 'enormous.'[142] Parliament may not be able to anticipate which of its activities will need protection, and will have to choose between continual monitoring of State legislation or a possibly harmful blanket exclusion of State laws.[143] If Parliament does wish to confer immunity on the executive from a State law, it may not be able to respond sufficiently promptly, so that damage may be done before the overriding legislation is passed. In particular, there is the possibility that the Senate may block the legislation.[144]
I would argue that these claims of practical difficulty are exaggerated. These claims have greater force in the context in which they were initially developed – in the United States, where the practical problem posed to Congress in dealing with fifty states, many with highly diversified law, is more obvious than that posed in Australia.[145] Section 64 of the Judiciary Act 1903 (Cth) has operated for nearly a century to remove the large part of the immunity conferred on the Executive by the Court without such dire consequences. This provision could continue to operate if the implied immunity was removed, so that the general position would remain that the Commonwealth was bound by State law. While it might be difficult, it would certainly not be impossible for the Commonwealth Parliament then to consider which of its activities it did want to be immune from the operation of State law. In future, the issue might become a relatively simple matter of parliamentary drafting. It has been suggested that one of the negative consequences of the Cigamatic doctrine was that it removed the incentive for the Commonwealth to state clearly its position of liability to State law;[146] if such an incentive were restored it might reasonably be expected that the Commonwealth would respond according to its best interests.
It may be true that the Senate could pose a real obstacle to the passage of legislation intended to override a State law or to provide the Commonwealth Executive with immunity. The suggestion that this gives rise to a need for an implied immunity, though, is based on an incorrect view of what 'the Commonwealth' is for the purposes of such an immunity. An implication would be derived from the system of federalism,[147] and accordingly would be concerned with the protection of the polity of the Commonwealth, rather than with the Commonwealth Executive in particular. As Mason J observed in Queensland Electricity Commission, in relation to the implication of State immunity from Commonwealth law, the immunity protects legislatures as well as executive governments.[148] The Commonwealth, in the appropriate sense, as a polity in the federal scheme, can protect itself by using Section 109, and the internal workings of the Commonwealth – such as a refusal by the Senate to pass an overriding law – is not a relevant consideration.
Ultimately, the question of whether Section 109 provides the Commonwealth with sufficient protection to remove the need for an implied immunity cannot be answered without reference to a more fundamental question: is a factor such as the Commonwealth's ability to protect itself relevant in determining whether an implication of immunity is necessary? The reason that such a consideration might be seen to be irrelevant is that it is at least partly a political rather than a constitutional constraint. Whereas a provision like Section 114, by its presence in the Constitution, confers a particular form of immunity on the Commonwealth, without the Parliament needing to act at all, Section 109 can only be enforced by the Court where there is an overriding Commonwealth law. It might be thought that this form of protection, which I shall term a 'partly political' one, does not remove the need for an implied judicial limitation, it merely operates as a possible additional source of protection.
The question of whether such partly political constraints are relevant in determining if there is a need for an implied limitation has not been directly considered by the Court. Mason CJ did indicate in Political Broadcasts that an implication 'must be logically or practically necessary for the preservation of the integrity of that structure'.[149] His Honour's reference to practical necessity might suggest that a partly political constraint would be relevant, since at a practical level the protection provided by such a constraint may be just as effective as that provided by a provision such as Section 114. However, it is difficult to tell whether Mason CJ intended to suggest that an implication must be practically necessary; or that it can be either practically or logically necessary. No equivalent question was addressed by the Court in its consideration of the freedom of political communication.[150]
The question of the relevance of partly political constraints has, however, been closely examined in the United States, by the Supreme Court and by a range of academic commentators. An examination of the debate over this issue in the United States is helpful in considering both whether partly political constraints are relevant, and in deciding whether the effect of such protection is to remove the need for an implied immunity.
In this 1985 decision, the Supreme Court greatly narrowed the scope of the previously established implied immunity of the States from the exercise of the Federal power over interstate commerce.[152] A majority of the Court rejected the line of authority which had protected 'traditional government functions' from federal interference as 'unsound in principle and unworkable in practice'.[153] The majority then proceeded with the more radical argument that any form of substantive immunity was unnecessary because state interests 'are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.'[154] These procedural safeguards, the Court explained, are provided by 'state participation in federal government action' – namely, the representation of States in the Senate – and more generally, by the fact that the President and the members of the House of Representatives are themselves residents of a particular State.[155]
The Supreme Court in Garcia clearly accepted that what I have described as a partly political constraint was relevant in determining the need for an implied immunity. The ability of the States to protect themselves against federal laws that threatened their vital interests was based on a constitutional feature: the representation of the States in the Senate.[156] But this protection depended on political factors as well if it was to be effective – for instance, the ability of the States to unite against a federal incursion on vital State functions.
The decision in Garcia was, though, a controversial one and some of the criticisms amounted to a rejection of the Supreme Court's claim that these kinds of constraints were relevant in determining whether there was a need for judicial review. One critic argued that the decision in Garcia amounted to:
the piecemeal repeal of judicial review. It also involves a double counting of what are in fact merely pre-judicial and post-judicial "safeguards" of the American constitutional plan, safeguards...merely additional to, and not in substitution of, substantive judicial review.[157]
A similar claim could be made in the Australian context if the Court was to find that Section 109 removes the need for an implication of Commonwealth immunity. It might be argued that the text and structure of the Constitution require that the Commonwealth possess at least some form of immunity, and the judiciary cannot abdicate its role of interpreting the Constitution because the Commonwealth can possibly protect itself.[158]
Such a claim would, however, be based on a mistaken understanding of the role of judicial review under the Australian Constitution. As Stephen Gageler has argued, there is actually a stronger case for the High Court to take non-judicial constraints into account in interpreting the Constitution than there is for the United States Supreme Court.[159] As the Court in Engineers recognised, the Australian Constitution in many respects relies on constraints arising from the operation of the system of representative and responsible government rather than on judicial protection.[160] For instance, the Court argued that one of the consequences of the presence of representative and responsible government in the Constitution is that the powers granted to the Commonwealth are not to be read down or limited for fear of possible abuse.[161]
It is, therefore, consistent with the approach of the Court in Engineers to take a consideration like Section 109 into account when determining whether an implied protection is necessary. It may be thought that, in Melbourne Corporation, and the subsequent cases concerning the immunity of the States from Commonwealth laws, the Court rejected the specific suggestion in Engineers that Commonwealth power should not be subject to implied limitations.[162] However, the decision should not be read as rejecting the broader emphasis on the importance of non judicial constraints in the Engineers decision. There was certainly no such suggestion in Melbourne Corporation, and in the more recent cases concerning implications, the Court has gone to great pains to emphasise its continued adherence to the general approach to constitutional interpretation laid down in Engineers.[163]
A recognition of partly political constraints as relevant to the question of 'necessity' would also be consistent with the underlying rationale of the Court's approach to constitutional implications. In Part II of this article, I suggested that the necessity test reflects a cautious and restrained approach to deriving implications from the Constitution that is demanded both by the accepted 'literalism' of the Court, and, more broadly, by the need to maintain the Court's legitimacy as the interpreter of the Constitution. These factors suggest that the concept of a necessary implication should be a narrow one, and should include all factors that can reasonably be considered to be relevant.
This is not to suggest that an entirely political constraint should be considered to preclude the need for an implication of immunity. Consider, for instance, if the Commonwealth was said to derive protection from its ability to lobby State parliaments not to pass laws which interfered with the Commonwealth in an undesirable way. This would be a purely political constraint, with no foundation in the Constitution, and one which the Court might find it difficult to accept as relevant to the question of constitutional interpretation.[164] The protection provided by Section 109, though, is firmly grounded in the text of the Constitution, and is clearly apparent on a consideration of the possible effects of the section. Indeed, Geoffrey Sawer has suggested that the basic assumption of the framers of the Constitution was that 'the Senate [would] protect the States, and the Commonwealth [would] protect itself.'[165]
I would argue that the presence of Section 109 in the Constitution removes any need for an implication of Commonwealth immunity. Although the protection provided to the Commonwealth by Section 109 is contingent on the Commonwealth passing a law to override any objectionable State law, and is therefore different to a protection such as that provided by Section 114, it should be understood as relevant to the question of whether an implied immunity is necessary. For the Court to acknowledge such a form of protection would be consistent with the emphasis in the Engineers decision on the importance of non judicial constraints within the Constitution, and with the element of caution inherent in the requirement that implications be 'necessary'.
There are few constitutional limitations on the use of Section 109 by the Commonwealth to provide the Executive with immunity from the operation of State law, and I have argued that the practical difficulties that have been suggested are not significant. In particular, the suggestion that there would be difficulty in passing Commonwealth legislation seeking to confer immunity through the Senate is based on an incorrect view of what 'the Commonwealth' is for the purposes of an implied immunity. Certainly, the means of protection possessed by the Commonwealth are a great deal stronger than those possessed by the States under the United States Constitution and recognised in Garcia. The Commonwealth has the means of protection entirely in its own hands, whereas the protection of the States depends on their exercising their influence on the Federal Government.[166] Given the ample capacity of the Commonwealth to protect itself from any State laws that might be thought to threaten the vital interests or continued functioning of the Commonwealth Executive, it cannot be said that an implied immunity is necessary.
In this article, I have argued that a principle of Commonwealth immunity must be based on an implication rather than a lack of State power. The Court has authoritatively determined that implications can only be drawn as necessary with regard to the text and structure of the Constitution. I have argued that the current doctrine of Commonwealth immunity, as established in Residential Tenancies, cannot be supported on this basis. Furthermore, since the effect of Section 109 is that the Commonwealth can protect itself against objectionable State laws, it cannot be said that any principle of Commonwealth immunity is necessarily implied by the Constitution.
A number of benefits would follow from the absence of a judicially implied Commonwealth immunity. A position where Commonwealth immunity depended on express provision by the Parliament would have a distinct advantage in terms of certainty and clarity, as compared to an implied immunity. The history of previous attempts to define the scope of such an immunity would suggest that such an immunity is likely to be of uncertain application.[167] In addition, the Court would not be required to undertake the sort of difficult task which it faces in regard to the implied freedom of political communication – forming a view as to the sort of federalism established by the Constitution in order to give content to the implication.
This argument has largely focused on the approach that the Court should adopt to the issue of Commonwealth immunity, consistent with its own interpretative principles. In concluding, though, I make some observations on the more speculative question of whether the Court would in fact accept this approach. The most obvious obstacle is that of precedent.[168] Adrienne Stone has suggested that while, in the wake of Lange, the Court may generally require that constitutional implications be firmly grounded in the Constitution, there may be an exception for well established precedents.[169] The precedential power of the Cigamatic doctrine is, doubtless, increased by the fact that its main author was Sir Owen Dixon, a widely revered judge.[170] The approach of the majority in Residential Tenancies suggests that the Court would prefer to attempt to follow established precedents than to reconsider the question of Commonwealth immunity from principle.
This is slightly ironic, given that the Cigamatic doctrine is itself founded on a rejection of an earlier precedent. The decisions that preceded Cigamatic in fact support the position advocated in this article, that there should be no implied protection for the Commonwealth from State law.[171] Sir Owen Dixon justified the reversal of the decision in Uther on the grounds that it was based on a 'fundamental error in a constitutional principle'.[172] I would suggest that it is the Court's current approach to Commonwealth immunity from State law that is based on a fundamental error, and for this reason it should be overturned.
[*] BA, LLB (Hons) (ANU). This article is a revised version of an honours thesis completed at the Australian National University Faculty of Law. I would like to thank Adrienne Stone, Matthew Darke, Geraldine Chin and Amelia Simpson for their assistance with this article.
[1] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91. See, eg, Geoffrey Sawer, Australian Federalism in the Courts (1967) 126.
[2] Nicolee Dixon, 'Limiting the Doctrine of Intergovernmental Immunity' [1993] QUTLawJl 1; (1993) 9 Queensland University of Technology Law Journal 1; John Doyle, '1947 Revisited: The Immunity of the Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law, (1994); Gareth Evans, 'Rethinking Commonwealth Immunity' [1972] MelbULawRw 13; (1972) 8 Melbourne University Law Review 521; Colin Howard, 'Some Problems of Commonwealth Immunity and Exclusive Legislative Powers' [1972] FedLawRw 3; (1972) 5 Federal Law Review 31; HP Lee, 'Commonwealth Liability to State Law — The Enigmatic Case of Pirrie v McFarlane' (1987) 17 Federal Law Review 132; RP Meagher and WMC Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25; Igor Mescher, 'Wither Commonwealth Immunity' (1998) 17 Australian Bar Review 23; Ronald Sackville, 'The Doctrine of the Immunity of Instrumentalities in the United States and Australia: A Comparative Analysis' [1969] MelbULawRw 2; (1969) 7 Melbourne University Law Review 15; Geoffrey Sawer, 'State Statutes and the Commonwealth' [1961] UTasLawRw 6; (1961) 1 University of Tasmania Law Review 580; Leslie Zines, 'Sir Owen Dixon's Theory of Federalism' (1965) 1 Federal Law Review 221.
[3] This provision has the effect of submitting the Commonwealth to State law once a 'suit' has commenced. See, eg, Susan Kneebone, 'Claims Against the Commonwealth and States and their Instrumentalities in Federal Jurisdiction: Section 64 of the Judiciary Act' [1996] FedLawRw 4; (1996) 24 Federal Law Review 93; see also below n 6.
[4] There is a now rather weak presumption that the Crown is not bound by the general words of statutory provisions. See especially Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 23. See also Commonwealth v Western Australia (1999) 196 CLR 392, 410 (Gleeson CJ and Gaudron J).
[5] While both of these topics are, in practice, closely connected to the issue of Commonwealth constitutional immunity, they are beyond the scope of this article.
[6] For instance, where Section 64 does not apply because there is no 'suit'. See Kneebone, above n 3.
[7] Mark Gladman, 'Re the Residential Tenancies Tribunal of NSW and Henderson; Ex Parte Defence Housing Authority (1997) 190 CLR 410: States' Power to Bind the Commonwealth' (1998) 27 Federal Law Review 151, 151; Doyle, above n 2, 49, 68–72; Sackville, above n 2, 15.
[8] Doyle, above n 2; Jeremy Kirk, 'Constitutional Implications from Representative Democracy' [1995] FedLawRw 2; (1995) 23 Federal Law Review 37, 67.
[9] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91.
[10] Re Residential Tenancies Tribunal (NSW); Ex Parte Defence Housing Authority (1997) 190 CLR 410 ('Residential Tenancies').
[11] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.
[12] Leslie Zines, 'The Federal Balance' in Gregory Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 81–84.
[13] (1997) 190 CLR 410. See also Commonwealth v Western Australia (1999) 196 CLR 392, 409 (Gleeson CJ and Gaudron J), 421 (McHugh J), 472 (Hayne J).
[14] McCulloch v Maryland 17 US [1819] USSC 5; (4 Wheat) 316 (1819). See Sackville, above n 2, 19–24.
[15] D'Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 110–111 (Griffith CJ). The doctrine received a reciprocal application in Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488.
[16] [1920] HCA 54; (1920) 28 CLR 129 ('Engineers').
[17] Ibid 144 (Knox CJ, Isaacs, Rich and Starke JJ).
[18] Ibid 155.
[19] [1925] HCA 30; (1925) 36 CLR 170.
[20] The majority consisted of Knox CJ, Higgins and Starke JJ. Isaacs and Rich JJ dissented for reasons unconnected with any principle of immunity.
[21] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170, 226–227.
[22] [1937] HCA 26; (1937) 56 CLR 657, 681–683 (Dixon J) ('West').
[23] [1940] HCA 13; (1940) 63 CLR 278, 299 (Dixon J).
[24] [1947] HCA 26; (1947) 74 CLR 31 ('Melbourne Corporation').
[25] Ibid 66 (Rich J), 70 (Starke J), 83 (Dixon J).
[26] Ibid 82.
[27] [1947] HCA 45; (1947) 74 CLR 508 ('Uther').
[28] Engineers [1920] HCA 54; (1920) 28 CLR 129, 143–144. See also Leslie Zines, above n 2, 225–227.
[29] Uther [1947] HCA 45; (1947) 74 CLR 508, 513 (Latham CJ), 522 (Rich J), 524 (Starke J), 536 (Williams J).
[30] Ibid 520–521. See below Pt IV.
[31] Ibid 528.
[32] Ibid 529.
[33] Ibid.
[34] Ibid.
[35] Ibid 529–530.
[36] Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31, 83.
[37] Uther [1947] HCA 45; (1947) 74 CLR 508, 529–531.
[38] [1962] HCA 40; (1962) 108 CLR 372 ('Cigamatic').
[39] Dixon CJ's view received the support of Kitto, Menzies, Windeyer and Owen JJ. McTiernan and Taylor JJ would have upheld Uther.
[40] Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 377.
[41] Ibid 377–378.
[42] Ibid 377.
[43] [1953] HCA 10; (1953) 89 CLR 229 ('Bogle').
[44] The case was concerned with whether an increase in accommodation charges at a Commonwealth migrant hostel violated the Victorian Prices Regulation Act 1948.
[45] Bogle [1953] HCA 10; (1953) 89 CLR 229, 259 (Fullagar J), with whom Dixon CJ and Kitto J agreed. Webb J 'substantially agreed' 255.
[46] Ibid 260 (Fullagar J). On the 'affected by' doctrine, see Grant Donaldson, 'Commonwealth Liability to State Law' (1985–86) 16 Western Australia Law Review 135; Evans, above n 2, 532–547.
[47] See generally, Gladman, above n 7; Mescher, above n 2; Leslie Zines, 'The Nature of the Commonwealth' [1998] AdelLawRw 8; (1998) 20 Adelaide Law Review 83.
[48] Section 64 of the Judiciary Act 1903 was applied in Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362 and Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254, removing the need to consider the constitutional immunity. See also Kneebone, above n 3.
[49] Residential Tenancies (1997) 190 CLR 410.
[50] Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ found the New South Wales law valid. Kirby J dissented on the basis that the State law was inconsistent with the Commonwealth law.
[51] Residential Tenancies (1997) 190 CLR 410, 424–5 (Brennan CJ), 438–439 (Dawson, Toohey and Gaudron JJ). See also below Part III. Gladman, above n 7, discusses the differences between the joint judgment and that of Brennan CJ.
[52] Residential Tenancies (1997) 190 CLR 410, 439 (Dawson, Toohey and Gaudron JJ).
[53] Ibid 458–460 (McHugh J), 463–472 (Gummow J).
[54] Ibid 499–509 (Kirby J).
[55] Ibid 440.
[56] Ibid. See above at n 34 and n 35.
[57] Ibid 440.
[58] Ibid 441.
[59] Uther [1947] HCA 45; (1947) 74 CLR 508, 530.
[60] Meagher and Gummow, above n 2, 28; see also Doyle, above n 2, 62–63.
[61] See Constitution Act 1855 (NSW). See generally Powell v Appollo Candle Co (1885) 10 App. Cas 282; Union Steamship v King [1988] HCA 55; (1988) 166 CLR 1.
[62] Although it could be argued that such corporations and persons come within the power of the States because they are of the same general category as previous subjects of State law. As Leslie Zines has noted, if the claim is that the Commonwealth is in a special category, 'we are driven back to the nature of the federal system' — The High Court and the Constitution (4th ed, 1997) 361. This is more appropriately the subject of an implication.
[63] Uther [1947] HCA 45; (1947) 74 CLR 508, 530–531.
[64] Meagher and Gummow, above n 2, 28–29. See A-G (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529; Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1, 19–23 (Mason J), 11 (Stephen J); Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1; Actors and Announcers Equity Association v Fontana Films Pty. Ltd. [1982] HCA 23; (1982) 150 CLR 169.
[65] Uther [1947] HCA 45; (1947) 74 CLR 508, 521.
[66] Uther [1947] HCA 45; (1947) 74 CLR 508, 521 (Latham CJ).
[67] A characterisation approach to State immunity was advocated by Latham CJ in Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31, 61–62 and by Barwick CJ in Victoria v Commonwealth (The Payroll Tax Case) [1971] HCA 16; (1971) 122 CLR 353, 372–373 ('Payroll Tax Case'), but was rejected in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 150–152 (Mason J), 215 (Brennan J); Queensland Electricity Commission v Commonwealth [1985] HCa 56; (1985) 159 CLR 192, 215 (Mason J).
[68] Bogle [1953] HCA 10; (1953) 89 CLR 229, 259. See also Payroll Tax Case [1971] HCA 16; (1971) 122 CLR 353, 373 379–80 (Barwick CJ).
[69] Doyle, above n 2, 56–65; Evans, above n 2, 527–529.
[70] [1920] HCA 54; (1920) 28 CLR 129, 152-153 (Knox CJ, Isaacs, Rich and Starke JJ).
[71] Residential Tenancies (1997) 190 CLR 410, 505–506 (Kirby J). Although the doctrine of the indivisibility of the Crown has been subject to criticism – see, eg, Minister for Works v Gulson [1944] HCA 27; (1944) 69 CLR 338, 350 (Latham CJ). It was not even discussed in Uther or Cigamatic let alone rejected.
[72] Residential Tenancies (1997) 190 CLR 410, 446.
[73] Doyle, above n 2, 60. The author refers to the cases of Public Curator of Queensland v Morris (1951) 51 SR (NSW) 402; Commissioner for Railways v Peters (1991) 102 ALR 579, 589; A-G (Eng) v Sorati [1969] VR 89, 99.
[74] Geoffrey Sawer, 'Implication and the Constitution, Part I' (1948–1950) 4 Res Judicatae 15, 20.
[75] Brennan CJ's judgment in Residential Tenancies is quite ambiguous on this point.
[76] Residential Tenancies (1997) 190 CLR 410, 503–504.
[77] Ibid 451.
[78] For an interesting parallel with the recent decision of the Court in Re Wakim; Ex Parte McNally [1999] VSC 227; (1999) 163 ALR 270, see Graeme Hill, 'The Demise of Cross-Vesting' (1999) 27 Federal Law Review 547, 573–575. Hill argued that the majority, in finding that the States have no power to confer jurisdiction on federal courts, were, without specifically acknowledging this, drawing a negative implication. Hill goes on to contend that this implication is inconsistent with the approach to implications adopted in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 ('Lange'); see also Dennis Rose, 'The Bizarre Destruction of Cross Vesting' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads, (2000), 191–194.
[79] Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31, 82.
[80] There have also been suggestions of a 'nationhood power' as an implication which operates to expand the scope of Commonwealth power – see Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 187–188 (Dixon J); Victoria v Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338, 397 (Mason J); Davis v Commonwealth (1988) 196 CLR 79, 110–111 (Brennan J).
[81] See Australian Postal Commission v Dao [1985] 3 NSWLR 565, 597–598 (McHugh J); Leslie Zines 'The Commonwealth' in Gregory Craven (ed), Australian Federation Towards the Second Century, (1992), 92–94; Zines, above n 62, 362.
[82] Stephens v West Australian Newspapers [1994] HCA 45; (1994) 182 CLR 211, 232–234 (Mason CJ, Toohey and Gaudron JJ), 236 (Brennan J). The case for consistency of approach is even clearer where, as here, the implication limiting the States would derive from the Commonwealth Constitution.
[83] [1992] HCA 45; (1992) 177 CLR 106 ('Political Broadcasts').
[84] Ibid 135.
[85] [1985] HCa 56; (1985) 159 CLR 192 ('Queensland Electricity Commission'). See especially Political Broadcasts ([1992] HCA 45; 1992) 177 CLR 106, 134–135.
[86] [1997] HCA 25; (1997) 189 CLR 520.
[87] Ibid 566–567.
[88] Ibid.
[89] Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 42–45 (Brennan J); 69–73 (Deane and Toohey JJ); Political Broadcasts [1992] HCA 45; (1992) 177 CLR 106, 181 186 (Dawson J), 230–232 (McHugh J), 208–215 (Gaudron J). See also Kirk, above n 8, 66–68; Zines, above n 62, 378–379.
[90] In Commonwealth v Western Australia (1999) 196 CLR 392, 418, Gleeson CJ and Gaudron J, while not expressly invoking the Lange test, found that particular powers possessed by the Commonwealth left 'no room' for an implied immunity of the Commonwealth from State laws which operated with respect to land set aside for defence purposes.
[91] Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' [1996] FedLawRw 5; (1996) 24 Federal Law Review 133, 159.
[92] Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29, 85 (Dixon J); Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 144–145 (Dixon J).
[93] Kirk, above n 8, 65–66.
[94] On 'literalism' and 'legalism', see generally, Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997); Zines, above n 62, 424–433; Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998), 236–243, 245–251; Gregory Craven, 'The Crisis of Constitutional Literalism in Australia' in HP Lee and George Winterton (eds) Australian Constitutional Perspectives, (1992).
[95] [1985] HCa 56; (1985) 159 CLR 192 at 212. See also per Brennan J at 230.
[96] West [1937] HCA 26; (1937) 56 CLR 657, 681.
[97] Ibid. This statement has been quoted with approval in Pay-Roll Tax Case [1971] HCA 16; (1971) 122 CLR 353, 401–402 (Windeyer J), 418 (Gibbs J); Political Broadcasts [1992] HCA 45; (1992) 177 CLR 106, 133–134 (Mason CJ); Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 42 (Brennan J), 69 (Deane and Toohey JJ). See also Essendon Corporation v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1, 22 (Dixon J).
[98] Michael Coper, 'The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur' [1994] SydLawRw 15; (1994) 16 Sydney Law Review 185, 191–192; Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668, 706; Kirk, above n 8, 69–73.
[99] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 197; 143 (Brennan J) ('Theophanous'). See also Sir Owen Dixon's speech on his appointment as Chief Justice in (1952) 85 CLR xiv.
[100] The Payroll Tax Case [1971] HCA 16; (1971) 122 CLR 353, 402.
[101] See the extra judicial comments of Sir Anthony Mason in 'The Role of a Constitutional Court' [1986] FedLawRw 1; (1986) 16 Federal Law Review 1, 5; and in 'Trends in Constitutional Law' [1995] UNSWLawJl 13; (1995) 18 University of New South Wales Law Journal 237, 237–238; Kirk, above n 8, 67; Bryan Horrigan, 'Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning' in Charles Sampford and Kim Preston (eds) Interpreting Constitutions (1996); Craven, above n 94.
[102] Nicholas Aroney, 'A Seductive Plausibility: Freedom of Speech in the Constitution' [1995] UQLawJl 6; (1995) 18 University of Queensland Law Journal 249, 264–267; Jeffrey Goldsworthy, 'Implications in Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994); Jeffrey Goldsworthy, 'Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue' [1997] MonashULawRw 22; (1997) 23 Monash University Law Review 362.
[103] Contra Donaghue, above n 91.
[104] See above n 102; Stone, above n 98; Leslie Zines, 'The Present State of Constitutional Interpretation' in Stone and Williams (eds), above n 78 227–228; Kirk, above n 8.
[105] Stone, above n 98; see also, by the same author, 'Incomplete Theorizing in the High Court' [1998] FedLawRw 8; (1998) 26 Federal Law Review 195; 'The Freedom of Political Communication Since Lange' in Stone and Williams, (eds) above n 78.
[106] Ibid 696–699.
[107] As witnessed by the disagreement of members of the court as well as by the academic criticism – see above n 102; Theophanous [1994] HCA 46; (1994) 182 CLR 104, 163 (Deane J), 188 (Dawson J), 194 (McHugh J).
[108] AR Blackshield, 'Implied Freedom of Communication' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994), 239; Zines, above n 62, 391–392; Kirk, above n 8, 75–76.
[109] Political Broadcasts [1992] HCA 45; (1992) 177 CLR 106, 186–187 (Dawson J), 229–233 (McHugh J); Theophanous [1994] HCA 46; (1994) 182 CLR 104, 194 (McHugh J).
[110] Political Broadcasts [1992] HCA 45; (1992) 177 CLR 106, 186–187 (Dawson J), 229–233 (McHugh J).
[111] Ibid 187.
[112] Residential Tenancies (1997) 190 CLR 410, 454 (McHugh J), 472 (Gummow J), 504–505 (Kirby J); Gladman, above n 7, 158–159; Zines, above n 47, 91–92; Bradley Selway, 'The Nature of the Commonwealth: A Comment' [1998] AdelLawRw 9; (1998) 20 Adelaide Law Review 95, 99; Dennis Rose, 'The Nature of the Commonwealth: A Comment' [1998] AdelLawRw 10; (1998) 20 Adelaide Law Review 101, 105; Mescher, above n 2, 40.
[113] Residential Tenancies (1997) 190 CLR 410, 454–455.
[114] Mason, above n 101, 244–245; Zines, above n 62, 444–449.
[115] Ibid 569. See also Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 383, 401.
[116] Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461, 569; Ngo Ngo Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 498 (Brennan CJ, McHugh, Gummow and Kirby JJ), 514 (Dawson, Toohey and Gaudron JJ); Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 383, 401.
[117] Residential Tenancies (1997) 190 CLR 410, 440.
[118] [1947] HCA 26; (1947) 74 CLR 31, 82 (Dixon J).
[119] Queensland Electricity Commission [1985] HCa 56; (1985) 159 CLR 192, 217; Residential Tenancies (1997) 190 CLR 410, 443.
[120] Compare Cigamatic [1962] HCA 40; (1962) 108 CLR 372 with Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25, 93 where Mason J stated 'there is no secure foundation for an implication that the Parliament's legislative powers cannot affect the prerogative in right of the States, and the weight of judicial opinion... is against it.'
[121] Residential Tenancies (1997) 190 CLR 410, 440–441.
[122] Although it has been argued that the recent application of this test in Re Australian Education Union; Ex Parte Victoria [1995] HCA 71; (1995) 184 CLR 188 goes beyond what is necessarily required by the structure of federalism. See Donaghue, above n 91, 162; see also Amelia Simpson, 'The Australian Education Union Case: A Quiet Revolution?' [1998] GriffLawRw 2; (1998) 7 Griffith Law Review 30.
[123] As Michael Coper has observed, the discrimination limb of the principle is less clearly connected to the principle expressed in Melbourne Corporation. Michael Coper, Encounters With the Australian Constitution (1st ed, 1987) 191. In some cases, though, the concept of 'discrimination' has been applied in such a way that the substantive question of the effect of the law on the Commonwealth has been addressed – see Zines, above n 62, 326–328.
[124] It may also be possible that the principle is too narrow – in the sense that it failed to cover a State law that did threaten the independence of the Commonwealth, although it is difficult to imagine such a law which was not also discriminatory.
[125] Residential Tenancies (1997) 190 CLR 410, 424.
[126] Ibid 426.
[127] George Winterton, Parliament, The Executive and the Governor General (1983) 27.
[128] R v Credit Tribunal; Ex Parte General Motors Acceptance Corp Australia [1977] HCA 34; (1977) 137 CLR 545. The limits of the Commonwealth's ability to prevent a State law being inconsistent with a Commonwealth law were outlined in University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447.
[129] See, eg, Evans, above n 2, 547–557; Dixon, above n 2, 18–30; Howard, above n 2, 58.
[130] Residential Tenancies (1997) 190 CLR 410, 507–508. See also Doyle, above n 2, 69–70; Colin McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (2nd ed, 1978) 38; Mescher, above n 2, 41.
[131] Residential Tenancies (1997) 190 CLR 410, 504.
[132] Zines, above n 47, 95; Zines, above n 62, 364; Gladman, above n 7, 160, 163; Sawer, above n 1, 203–204; Geoffrey Sawer, 'Implication and the Constitution: Pt II' (1948–1950) 4 Res Judicatae 85, 90; Sackville, above n 2, 45, 64; Coper, above n 123, 192–193.
[133] Uther [1947] HCA 45; (1947) 74 CLR 508, 520–521.
[134] Ibid.
[135] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170, 180–184 (Knox CJ), 212–214 (Higgins J), 225–229 (Starke J); West [1937] HCA 26; (1937) 56 CLR 657, 664–669 (Latham CJ), 676–677 (Starke J), 711–714 (McTiernan J). Cf West [1937] HCA 26; (1937) 56 CLR 657, 681 (Dixon J), 684 (Evatt J).
[136] Victoria v Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338, 379; see also 396 (Mason J), 406 (Jacobs J); Residential Tenancies (1997) 190 CLR 410, 441; Brown v West (1990) 169 CLR 195, 202.
[137] Under the incidental power in Section 51(xxxix) if not one of the other heads of power. See Zines, above n 62, 262–273; JE Richardson, 'The Executive Power of the Commonwealth', in Leslie Zines (ed), Commentaries on the Australian Constitution (1977) 55–56, 64–68.
[138] Uther [1947] HCA 45; (1947) 74 CLR 508, 516.
[139] Sawer, above n 1, 142; see also above n 64.
[140] Wenn v Attorney-General (Vic) [1948] HCA 13; (1948) 77 CLR 84, 109–111 (Latham CJ), 120 (Dixon J); Botany Municipal Council v Federal Airports Corporation [1992] HCA 52; (1992) 175 CLR 453, 463–464; Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 464–467 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Contra West [1937] HCA 26; (1937) 56 CLR 657, 684 (Evatt J); Airlines of New South Wales Pty. Ltd. v NSW (No 2) ('Second Airlines Case') [1965] HCA 3; (1965) 113 CLR 54, 119 (Kitto J). This reasoning has not been more broadly adopted.
[141] See generally Dixon, above n 2, 14.
[142] Australian Postal Commission v Dao [1985] 3 NSWLR 565, 598.
[143] Ibid.
[144] Residential Tenancies (1997) 190 CLR 410 (Gummow J during argument).
[145] Sawer, above n 2, 588–589.
[146] Sackville, above n 2, 63; Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 388 (Taylor J, dissenting).
[147] See above at n 81. If the immunity was said to be derived from the national status of the Commonwealth, the same principle would apply.
[148] Queensland Electricity Commission [1985] HCa 56; (1985) 159 CLR 192, 217. See also Koowarta v Bjelke Peterson [1982] HCA 27; (1982) 153 CLR 168, 216 (Stephen J).
[149] Political Broadcasts [1992] HCA 45; (1992) 177 CLR 106, 135.
[150] Perhaps because the only argument of this nature could have been that the system of representative government operated as a check on Parliament limiting freedom of political communication, and the whole point of the Court's reasoning was that representative government could not function properly without such a freedom.
[151] [1985] USSC 86; 469 US 528 (1985) ('Garcia').
[152] See generally Martha Field, 'Comment: Garcia v San Antonio Metropolitan Transit Authority: The Demise of a Misguided Doctrine' (1985) 99 Harvard Law Review 84.
[153] Garcia [1985] USSC 86; 469 US 528, 546 (1985). This case overruled National League of Cities v Usery [1976] USSC 136; 426 US 833 (1976).
[154] Ibid 552.
[155] Ibid 556.
[156] See Constitution of the United States, Article I, s 2, and s 3.
[157] William Van Alstyne, 'Comment: The Second Death of Federalism' (1985) 83 Michigan Law Review 1709, 1724.
[158] See generally David Meale, 'The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal' (1992) 8 Australian Journal of Law and Society 25.
[159] Stephen Gageler, 'Foundations of Australian Federalism and the Role of Judicial Review' (1987) 17 Federal Law Review 162. See also Sackville, above n 2.
[160] Engineers [1920] HCA 54; (1920) 28 CLR 129, 146–147. As to the importance of representative and responsible government in the Constitution, see Lange [1997] HCA 25; (1997) 189 CLR 520, 557–559; Commonwealth v Kreglinger & Fernau Ltd [1926] HCA 8; (1926) 37 CLR 393, 411, 413 (Isaacs J); Commonwealth v Colonial Combing and Weaving Co Ltd ('The Wooltops Case') [1922] HCA 62; (1922) 31 CLR 421; Gageler, above n 160, 181–190; Sawer, above n 2, 585.
[161] Engineers [1920] HCA 54; (1920) 28 CLR 129, 151–152; see also South Australia v Commonwealth ('First Uniform Tax Case') [1942] HCA 14; (1942) 65 CLR 373, 429 (Latham CJ).
[162] Sawer, above n 74, 21–22.
[163] See text above at n 95.
[164] It would be difficult for the Court even to evaluate the factual evidence as to such a form of protection. See generally Andrew Bell, 'Section 92, Factual Discrimination and the High Court' (1991) 20 Federal Law Review 240. It is notable that in the Garcia decision, there was extensive discussion of evidence concerning the ability of the States to protect themselves.
[165] Sawer, above n 132, 90.
[166] Much of the criticism of the Garcia decision has been based on the argument that the methods of protection for the State relied on by the majority in Garcia are in fact inadequate. See, eg, John Yoo, 'The Judicial Safeguards of Federalism' (1997) 70 Southern California Law Review 1311.
[167] See above n 112.
[168] Cole v Whitfield [1988] HCA 18; (1990) 165 CLR 360 is the only case in which the Court has engaged in a comparable overhaul of an entire doctrine, although the elimination of the exceptions to the general interpretation of Section 90 in Ngo Ngo Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 should also be noted.
[169] Adrienne Stone, 'Lange, Levy and the Direction of the Freedom of Political Communication' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117, 133.
[170] See Australian Postal Commission v Dao [1985] 3 NSWLR 565, 598 (McHugh J).
[171] See text at nn 133 to 135 above.
[172] Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 377.
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