Taylor, Greg --- "Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown" [2000] MelbULawRw 4; (2000) 24(1) Melbourne University Law Review 77

Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown

GREG TAYLOR[*]

[The presumption that statutes do not bind the Crown exempts the executive from obeying laws enacted by the legislature unless the latter rebuts the presumption. This exemption operates either in a non-federal context (if, for example, both legislature and executive belong to the polity of an Australian State) or in a federal context (for example, the State government seeks exemption from a Commonwealth statute). Previous criticisms of the presumption have failed to distinguish between these two contexts. But the presumption is defensible in the federal context, and indeed plays a significant role in ensuring that consideration is given to states’ interests before the federation enacts legislation affecting them. This has been recognised by Canadian and United States courts. The High Court of Australia should recognise this too, and may be doing so.]

INTRODUCTION

When lawyers think about ways in which the legislation of one government in a federation can be prevented from affecting the functioning of other governments, they tend to think first and foremost of implied constitutional restrictions. In Australia we turn to decisions such as Melbourne Corporation v Commonwealth;[1] in the United States they consider the long line of cases which began with McCulloch v Maryland.[2] And there is no doubt that the doctrines which have developed in cases of this nature are of first importance in this field.

But all too often the discussion of intergovernmental immunities is restricted to cases like these in which constitutional doctrines prohibit or restrict the operation of one government’s legislation on another government. This article aims to show that a presumption of statutory interpretation — what is traditionally referred to as the presumption that statutes do not bind the Crown unless they expressly or impliedly provide otherwise[3] — can and should be used to protect one government from another[4] and, therefore, contributes to the law of intergovernmental relations.[5] For in Australia, both levels in the federal system — the federal government and all State governments[6] — represent the Crown.[7] All these governments are entitled to take advantage of the presumption that legislation does not bind the Crown unless it expressly or impliedly provides otherwise. They are therefore not subject to any legislation enacted by another government — even if that other government possesses the constitutional power to bind its partners in the federation — which does not by some means rebut this presumption of statutory interpretation.

Needless to say, the presumption will not be of any use to a government if a statute from which it seeks exemption does rebut the presumption. This was so in, for example, the State Banking Case.[8] However, if this is not the case, there is no need for any constitutional implications to operate. If a Commonwealth statute does not apply to State governments (for example) because of the presumption, there is no need to consider whether it contravenes an implied prohibition on the Commonwealth’s ability to bind the States.[9] Operating in this way, the presumption is, as will be shown, a significant means of ensuring that the States are not subjected to Commonwealth laws without sufficient consideration of their position by the Commonwealth.[10]

The High Court has recently considered issues relating to the presumption in the federal context — when the legislation emanates from one polity and the executive government alleged to be bound by it from another — in Commonwealth v Western Australia,[11] in which it was held that the Commonwealth government was not bound by a State statute. This article first provides a brief justification for the application of the presumption in inter-polity cases, and especially in cases in which the application of Commonwealth statutes to the States is concerned — the reverse of Commonwealth v Western Australia. It then places Australian law in the comparative context and considers the law of Canada and the US[12] on the presumption in the federal context. It moves on to consider the development of Australian law on the same topic in the past decade — after Bropho v Western Australia[13] — and suggests that Commonwealth v Western Australia is consonant with the law of other jurisdictions and appears to apply the preferable approach found in these jurisdictions, but that it needs to be applied across the board — to Commonwealth statutes and State governments as well as to State statutes and the Commonwealth government. (This article does not, however, deal with the often difficult question of whether a semi-governmental body is entitled to claim the benefit of the presumption because it is protected by the ‘shield of the Crown’;[14] rather, it assumes that a body has already been identified, which is protected if the legislation in question does not bind the Crown because of the presumption. Nor, for reasons of space and because it is confined to a consideration of the ambit of the common law presumption in the broader context, does this article deal with the extremely complicated law relating to s 64 of the Judiciary Act 1903 (Cth)[15] or with provisions of State law which qualify the presumption.[16])

II A DEFENCE OF THE PRESUMPTION IN INTERGOVERNMENTAL CASES

There are practical advantages for the federation if the presumption operates in federal disputes and exempts one government from the laws of another so far as they do not expressly or impliedly manifest a contrary intention. Such a result also maximises the autonomy of the individual units of the federation. The distinction between legislative power and legislative intention is no mere academic quibble, and there are good reasons why the Crown in all its federal manifestations should be able to rely on the presumption in relation to the legislation of other jurisdictions.

There is, it is true, much to be said for the view that the government should have to obey legislation from its ‘own’ Parliament, just as it has to obey the common law.[17] Recognising this, commentators[18] and some judges[19] have generally given the presumption a very bad press. A very detailed history of the presumption by Steven Churches[20] comes to the conclusion that it would be better to abolish the presumption altogether. In addition, there is no doubt that the reasons given for its existence are generally unconvincing; some of the objections to the presumption will be summarised shortly. However, most previous commentators[21] have failed to distinguish between cases where the presumption exempts a government from its own laws and cases where the presumption exempts a government from the laws of other governments. In the latter case the presumption performs a useful function; in the former its usefulness is far less obvious.

For example, it might be argued that governments should generally be exempt from legislation because they are essentially different from citizens and carry on a multitude of governmental functions which often require a different sort of regulation from that which applies to citizens. Examples of this are the de facto monopolies or quasi-monopolies enjoyed by some state government corporations in the supply of essential services such as water and the taxing functions of state governments. However, this argument has little force in non-federal cases: it is the government which drafts almost all legislation that reaches the statute book, and it can reasonably be expected to look after its own interests in the drafting of the Bill and to ensure that its special needs are taken into account. Nevertheless, it cannot be assumed that the government or Parliament will take the needs of other governments into account when proposing legislation. (The Senate, whatever its merits in other fields may be, is not an effective voice for the States in the Commonwealth Parliament.)

It must also be remembered that, in the Australian federation, the States enjoy no constitutional protection against Commonwealth laws which apply generally to all and which are not destructive of the States’ capacity to function. And only the Commonwealth can claim supremacy — and define the extent to which it will submit itself to State laws — under s 109 of the Australian Constitution. The presumption is therefore of much more significance when Commonwealth laws and the States are involved than when State laws and the Commonwealth are involved.[22] As Barwick CJ pointed out in Victoria v Commonwealth,[23] the presumption is the only way in which the States may claim any sort of protection from Commonwealth legislation which does not infringe the implied prohibitions — and few statutes do that. His Honour said:

[T]he Crown [has] submitted itself to the legislative powers of the Commonwealth to the full extent of each granted power and ... therefore the extent to which the Crown in right of the Commonwealth or in right of a State is bound by any law within the granted authority of the [Commonwealth] Parliament depends solely on the indication which the law itself gives of an intention to bind the Crown. The only question is one of statutory construction, the Crown being a party to the Commonwealth law.[24]

Those who maintain that the extent to which the States are subject to Commonwealth statutes should be ‘entirely a question of constitutional validity’[25] have not merely failed to distinguish between legislative power and legislative intention. Their view would also mean that the States would be very vulnerable indeed. The States, on this view, would be subject to virtually all Commonwealth laws rather than only to those which the Commonwealth has considered should apply to the States, having regard to the differences between States and individuals and the role of the States in our federation. It would surely not be right to deprive the States of their only remaining shield against the universal application of Commonwealth laws to them, especially when the Commonwealth possesses ample weaponry to penetrate that shield — it need only express an intention in its laws to bind the States.[26] The presumption is neither a significant restriction on the Commonwealth’s powers nor is it anti-democratic, for the federal Parliament may rebut it easily;[27] but when it is not rebutted, it is a significant defence for the States.

In addition, the Commonwealth and the States have been entrusted by the citizens of Australia with important functions and are partners in the Australian federation; each level of government accordingly deserves some respect from the other and should not be treated merely as a subject of the other which is automatically bound by its legislation. The presumption protects the States’ autonomy by ensuring that they are not thoughtlessly subjected to all sorts of far-reaching controls by the Commonwealth. The need to ensure that the Commonwealth does not restrict the States’ capacity to function as autonomous entities has recently been restated by the High Court.[28] To take an example that will be developed further shortly, the Trade Practices Act 1974 (Cth), if it had applied to the States from the date of its enactment, would have had a great effect on the States’ ability to run important functions of government. However, the negotiations, which are referred to shortly and which occurred when the Act was extended to certain operations of State governments — not, be it noted, to all operations of State governments, for it would not be appropriate to subject taxing powers, for example, to the Act[29] — have ensured that the special position of some government businesses and the need to exempt other State government operations entirely is not ignored.

I do not wish to argue that Commonwealth legislation should never be applied to the States, or that the conditions under which it may apply to them should be more restrictive than those outlined in the State Banking Case and its successors. Clearly, the Commonwealth needs to be able to bind the States if it is to make effective use of its granted powers. But it does seem right that the Commonwealth Parliament should be compelled to think about whether it wants its legislation to bind the States, and that they should not be bound if it fails even to consider the effect of its legislation on the States. It is not that there is something intrinsically wrong with Commonwealth legislation binding the States;[30] it is simply the case that it should not be enacted without first considering their position. This result is produced by the presumption.

It might also be hoped that the process of considering whether an Act should bind the States might lead the Commonwealth to consider whether those of its laws which it decides should bind them need any modifications to take account of their special status. But if Commonwealth legislation bound the States automatically, legislators would not even have to consider the effect of their statutes on the States. No special provision binding the States would need to be the subject of parliamentary scrutiny.[31] This would distract attention away from a very important issue in intergovernmental relations and allow the Commonwealth to bind the States by stealth.

The objection may be raised that, in the end, the protection thus afforded by the presumption is rather weak. In one sense this is correct: the legislator need only evince a clear intention to extend its statute to other governments. On the other hand, however, it is very common for statutes not to contain a provision dealing with their application to the Crown. In some cases it may not be politically expedient to include a provision in a Bill requiring other governments to obey the resultant statute. In other cases the drafters of the Bill, being (presumably) human, have simply forgotten to consider whether to extend the statute to the Crown. Or they may merely say that the statute binds ‘the Crown’ without specifying which of the several governments in Australia this phrase is meant to include; we shall see below that this phrase by itself is normally not enough to cover other governments.

Even if one government decides that one of its statutes should be made applicable to other levels of government, it is not always a simple matter of amending the appropriate Act to make an intention to bind them clear. If the necessary constitutional power exists to bind other governments, an amendment to rebut the presumption and achieve this result is, as a matter of law, a simple task, but political considerations and a laudable desire not to impose laws on other levels of government against their will are also important. This point is illustrated by the negotiations about the amendment of the Trade Practices Act 1974 (Cth). Because of the presumption, this Act when enacted did not bind State governments.[32] In the mid-1990s the Commonwealth thought it desirable to change this. But it did not simply have the necessary legislation passed without further ado. In the best spirit of federalism, it consulted the States first, and they won several important (and very lucrative) concessions from the Commonwealth as the price of their agreement to submit themselves to the Act. It may also be hoped that the quality of the legislation was improved by the very fact that negotiations between the parties occurred.[33] If the presumption had not protected the States, none of this would have happened. Rather than being able to take part in determining the terms of their submission, they would have been subject to the Act from the first day of its operation in the same way as everyone else.

It might be further objected that using a presumption of statutory interpretation in this way is illegitimate because it is being used not to determine accurately Parliament’s intention, but to smuggle an allegedly desirable principle in through the back door.[34] However, it is by no means unusual for the courts to construct a presumption of statutory interpretation in order to give effect to a desirable principle unless Parliament otherwise expressly decides. One need only think of the presumption against the retrospective operation of statutes or against divesting accrued rights.[35] If the above arguments are accepted, there is no reason why a presumption of statutory interpretation should not be used in a purposive way to give effect to them — at least in all but the rare case in which some contrary principle of equal or greater constitutional importance than federalism applies.[36]

Indeed, considerations such as these have led courts in other important federal jurisdictions to the conclusion that the presumption should be applied with the specific aim of protecting the smaller units from the indiscriminate application of legislation from the centre.

III CANADA

In Canada the development of the law relating to the presumption in federal cases has, as will become apparent, some resemblance to its development in Australia. A fairly recent restatement of the law by the highest court in the land has followed a long list of cases in which the applicability of the presumption in federal cases had been considered. With some exceptions, however,[37] it would be an accurate summary to say that the Canadian courts have favoured the application of the presumption in intergovernmental cases almost since Confederation.[38]

The Canadian courts have specifically considered whether allowing the presumption to operate in federal cases produces a better federation and decided on specifically federal grounds that it does. An example of this is the Canadian Transport Commission case.[39] This was a decision of the Supreme Court of Canada in which the question whether the presumption should be applied at all in federal cases was considered at some length. The case involved the application of a federal Act to a province. The province of Alberta had acquired over 99 percent of the shares in an airline. (This, it should be noted for future comparison, is clearly a commercial activity.) The Commission had made certain regulations under the Aeronautics Act, RSC 1985, c A-2, regarding the transfer of ownership in airlines, but Alberta claimed that it was not subject to them owing to the presumption. Section 16 of the Interpretation Act, RSC 1985, c I-21 provided that no statute ‘is binding on Her Majesty or affects Her Majesty’ without express words;[40] it did not mention (necessary) implication. The Court found unanimously for Alberta, although Spence and de Grandpré JJ did not have to consider the presumption.[41]

The remainder of the Court (Laskin CJC, Martland, Judson, Ritchie, Pigeon, Dickson and Beetz JJ)[42] held that a provision in the Aeronautics Act exempting ‘Her Majesty’s Forces’ was not relevant as it was merely inserted ex abundanti cautela (out of an abundance of caution).[43] The imposition of liability on ‘a person’ in the Act and the regulations was, their Lordships said, not apt to include the Crown in any right unless a necessary implication appeared that ‘a person’ included the Crown. Their Lordships stated correctly that it was the ‘traditional view’[44] that all of Her Majesty’s governments were entitled to the presumption. Alberta could rely either on s 16 or on the common law presumption, which extended to every right of the Crown.[45] If this were not so, the provincial governments would be automatically subject to federal legislation, which would offend the ‘mutually independent positions’[46] of federal and provincial governments.

Their Lordships further recognised the special federal character of the question involved in this case by pointing out that a provincial legislature could not impose its legislation on the Crown in right of Canada, but no such protection from the federation existed for the provinces, on which the federal legislature could impose its legislation if it so desired;[47] here, the similarity with Australia is obvious. This vulnerability of the provinces to federal legislation is a very good reason why the provinces should not be automatically bound by federal legislation if the federal legislature has not stated that that is its intention.

Less worthy of assent, however, is their Lordships’ view that the requirement of express words in s 16 removed the possibility that the Crown could be bound by necessary implication.[48] This ignores the obviously correct Australian view that a necessary implication[49] in any statute that the Crown should be bound by that statute would operate as an implied repeal of an earlier interpretation statute requiring express words for the presumption to be rebutted[50] — such statutes exist in Australia in Queensland and Tasmania.[51] But this error did not last long. The correct view has recently been accepted by the Canadian courts, and necessary implication has accordingly been restored to its rightful place.[52]

Apart from the Court’s view on the ‘necessary implication’ test, this is a very satisfactory decision if the views expressed earlier on the need for the presumption in the inter-polity context are accepted. It is gratifying to note that this case has been generally followed in Canada.[53]

This case did not deal exhaustively with the meaning of a provision in a statute that it binds simply ‘the Crown’. Does this rebut the presumption in relation to other polities or only the ‘enacting’ polity? The Canadian authorities recognise that the meaning of this phrase depends heavily on its context.[54] The Canadian position is therefore not dissimilar to the Australian, which will be considered shortly, although there is little sign in Canada of a prima facie rule along Australian lines[55] that ‘the Crown’ means only the ‘enacting’ Crown.

The Canadian Supreme Court elaborated its reasons for applying the presumption in the intergovernmental context in Alberta Government Telephones v Canadian Radio-Television and Telecommunications.[56] Dickson CJ, with whom McIntyre, Lamer, La Forest and L’Heureux-Dubé JJ agreed,[57] stated that the rule preserved some area of freedom for the individual governments in a federation, which was consistent with, and gave effect to, their mutual independence. Moreover, as Laskin CJC had pointed out, if the presumption did not apply in favour of the provinces they would be automatically subject to all federal legislation, which would surely not be in accordance with their status. Further, a presumptive exemption for other levels of government could always be restricted by appropriate amendments to the law, provided that constitutional power to do this existed.[58] Again the Supreme Court of Canada considered the special function which the presumption performs in a federation.

IV UNITED STATES OF AMERICA

The American experience shows that a rule exempting one government from another’s statutes does not depend on the existence of the Crown but on considerations directly related to federalism.[59] This may, of course, become important in Australia.

Such cases in the US before World War II as are available in Australia seem to have concentrated on the question of the applicability of State statutes to the federal government rather than the reverse situation.[60] An example is Chesapeake & Delaware Canal v US.[61] The US owned some shares in the canal and claimed in 1911 that it had not been paid dividends for 1873, 1875 and 1876. Despite this rather lengthy delay, the Circuit Court of Appeals held that a statute of limitations ‘does not bind a sovereign without express words of inclusion’[62] and that in any case the federal government could not, for reasons of constitutional power, be subject to a State statute of limitations.[63]

That the presumption operates in favour of the federal government was confirmed by the Circuit Court of Appeals in California Iron Yards v Commissioner of Internal Revenue (US).[64] The Iron Yards executed a waiver of its rights in favour of the Commissioner; the waiver appeared to have the effect of a contract. However, the Iron Yards had not paid its State taxes, and consequently s 3669c of Kerr’s Political Code of California (1872) decreed that all the company’s powers were suspended, avoided all the company’s contracts, and imposed a penalty on anyone who purported to exercise the powers of the company. The Court dealt with this problem in the following manner, simply assuming that the presumption applied to all governments as if this were obvious to everyone:

It is a fundamental rule of construction that general language in a statute does not apply to the sovereign. It would seem to follow from this principle that contracts entered into by the delinquent corporation with the representatives of the federal government in the exercise of their powers under the laws of the United States would not be included in the class of contracts thus declared void by the state legislature. The same rule would seem also to make inapplicable those provisions of the state statute imposing a penalty upon the officers of the corporation for attempting to so act on its behalf.[65]

In this case, too, we find the emphasis on the co-sovereignty of the units in the federal structure which was characteristic of American cases in this period. Now there are many instances in the Lawyers’ Edition of declarations by the US Supreme Court that the States are sovereign,[66] and indeed this notion of dual sovereignty was first elaborated in McCulloch v Maryland.[67]

One American commentator recognises both the federal function of the presumption and its basis in the doctrine of dual sovereignty when he says that the presumption ‘serves a quasi-constitutional purpose in our federal system of split sovereignty by helping to secure both levels of sovereign power against encroachment by each other’.[68] In addition, Rose J stated in Re Fowble[69] that the presumption was a ‘general rule applicable to all sovereigns’,[70] in this case the State of Maryland. While this case did not deal with the presumption in a federal context, as the statute involved here was a statute of Maryland, the statement that the presumption is available to ‘all sovereigns’ is significant. It both recognises the plurality of sovereigns in the US and allows for all of them to take advantage of the presumption.

A slightly different reason, which leads to no difference in practice, was given for the States’ ability to avail themselves of the presumption by the US Supreme Court in US v Herron,[71] where the Court said that ‘the people of the State[,] being sovereign, have succeeded to the rights of the former Sovereign, and that the people of the State are not bound by’[72] general words in statutes. The ‘people of the State’, a phrase which merely reflects republican theory,[73] are, of course, represented by the state. It might therefore be expected that the States could take advantage of the presumption in relation to federal legislation.

In California v US[74] the Circuit Court of Appeals held that the presumption extends also to State governments when federal legislation is involved.[75] The Belt Railway, owned and operated by California, admitted that it had violated the Safety Appliance Acts,[76] by allowing workers to engage in an unsafe work practice. The only question was whether the Acts applied to California. US v Hoar[77] was cited to the effect that ‘the government’[78] was not generally bound by legislation. Accordingly, California was not liable under the Acts. There was no discussion of why this should be so.

However, this case too seemed to provide cold comfort to the States, for it went on appeal to the US Supreme Court,[79] which allowed the appeal of the US on the grounds that an intention to bind the States could be inferred from the statute and that a government, when engaging in proprietary rather than governmental functions, could not take advantage of the presumption.[80] Admittedly, the Court did not doubt that the presumption was applicable to all governments; indeed, it said that the presumption was an aid in interpreting the intention of ‘the enacting sovereign’,[81] which appears to presuppose that sovereigns other than the enacting one might seek to rely on the presumption. This inference is strengthened by the fact that the Court referred in the same paragraph to the fact that the presumption is available to ‘a sovereign’,[82] not just to ‘the enacting sovereign’. The Court is thinking of two sovereigns here: one enacts the legislation from which the other seeks protection. The Court is clearly prepared to extend protection to the non-enacting sovereign unless, as in this case, it is engaging in proprietary functions.

The US Supreme Court considered the presumption again in Hancock v Train.[83] Hancock was the Attorney-General of Kentucky, who, claiming that the federal government was polluting his State, sued Train, the Administrator of a federal government agency. A regulation made by the State of Kentucky required a permit for facilities emitting air pollution in Kentucky. The federal agency was emitting air pollution but had no permit. The Court held that:

Particular deference should be accorded [to] that ‘old and well-known rule’ [ie the presumption] where, as here, the rights and privileges of the Federal Government at stake not only find their origin in the Constitution, but are to be divested in favor of and subjected to regulation by a subordinate sovereign.[84]

However, this somewhat hierarchical emphasis is not representative of all the American cases. The applicability of a federal statute to the States was considered in Coan v California,[85] a decision of the full bench of the Supreme Court of California. The Budget Act of 1973 c 129, Cal Stat (1973) directed that State civil servants were to have a pay rise of 11.5 percent. However, the Cost of Living Council, acting under the Economic Stabilisation Act of 1970 Pub L

No 91-379 s 203(a), 84 Stat 799 (1970) decreed that employees could not have more than seven percent. The civil servants sued to have this decree set aside, and Governor Reagan sent a letter to the Court to support their view.

The Court agreed with Governor Reagan. It held that the presumption applied and, moreover, that there was a settled rule that Congress would not be expected to intrude on areas which have traditionally been regulated by the States (such as their own internal affairs) without expressly stating this purpose.[86] US v California was distinguishable on the basis that it concerned proprietary, not governmental, functions.[87] Again, it was simply assumed that the presumption applied to all governments and in relation to all statutes, whatever their source; apparently this was so obvious that there was no need to mention or to justify it.

Starting with Atascadero State Hospital v Scanlon,[88] there has recently been a revival, under a different name, of the presumption that the States are not subject to Congressional regulation. Nowadays the presumption in America is referred to as the ‘clear statement rule’, the operation and effect of which on statutes that do not clearly state an intention to bind the States is almost indistinguishable from the presumption.[89] However, ‘clear statement’ rules are based on more generally applicable federal considerations rather than on the specifically American doctrine of co-sovereignty. Accordingly, they have a broader reach. Although, like the presumption, the rules are meant to protect the States, they spring from a broader desire to preserve from federal interference the States’ authority over areas which they have traditionally regulated in cases where it is unclear whether Congress intended to step in and regulate those areas.[90] They are therefore applied even when the question whether federal legislation binds the States is not in issue; the question is rather whether Congress wishes to regulate a particular activity at all. If Congress intends to regulate a field which has traditionally been regulated only by the States, the rule requires it to say so very clearly; otherwise, it is presumed, in order to protect the States’ powers, that Congress had no such intention.

Thus, for example, the rule was used in US v Bass[91] to set aside the conviction of a private citizen under a federal law: the wording of the law was ambiguous (it was not clear whether it extended beyond offences involving interstate elements); the ambiguity was resolved in accordance with the rule so as to preserve the traditional criminal jurisdiction of the States over offences not involving interstate commerce.[92] This had nothing to do with whether the statute bound the state — Bass was a private citizen; it had everything to do with protecting the traditional powers of the States. Yet the regulation of a state’s own affairs — the rights, duties and powers which it possesses under the law — also happens to be one of its traditional areas of activity. Accordingly, the rule can be applied in such cases as well, and Congress is required, if it enacts statutes which bind the States by intruding into the States’ areas of traditional self-regulation, to express such an intention with the utmost clarity. Moreover, it has been very recently held that the federal government cannot compel State officials to administer its legislation.[93]

This ‘clear statement’ rule is nowadays applied with a realisation of its function in protecting the States from the indiscriminate application of federal statutes, as it is in Canada. This occurs in order to ensure that the federal balance is maintained,[94] because of the ease with which Congress can bind the States if it chooses, having regard to the Supremacy Clause,[95] and as a ‘direct reaction to [the] pronouncements’[96] that Congress has almost unlimited authority to bind the States if Congress chooses to do so.[97] The ‘clear statement’ rule — a ‘simple but stringent test’[98] — merely insists that Congress should make a choice to bind the States clear,[99] using a statement that is ‘unequivocal and textual’[100] rather than equivocal and implied or based on legislative history.[101]

In fact, it seems that, in the US, the protection afforded to the States by doctrines such as those considered above has — contrary to the apparent trend of the early 1990s in Australia which will be considered shortly — become stronger rather than weaker. This appears to be in line with a general trend towards using techniques of statutory construction rather than constitutional doctrines properly so called, in order to achieve constitutional goals relating to the promotion of federalism.[102] One result of this trend is that there are now tensions between ‘clear statement’ rules on the one hand, which exempt the States from federal legislation and, on the other hand, the doctrine of stare decisis and earlier cases, which holds that statutes do apply to the States, and which might well be decided the other way today.[103]

The ‘clear statement’ rule is buttressed by the States’ general immunity from suit in federal courts under the Eleventh Amendment,[104] in cases where it applies, unless it is ‘unmistakably clear in the language of the statute’.[105] This too reflects the need to maintain an appropriate federal balance. Otherwise, the ‘clear statement’ rule is in form a rule of statutory construction only,[106] like the presumption applied in Canada, but clearly one with a constitutional role in achieving an appropriate federal balance.[107]

An example of the operation of ‘clear statement’ rules is in order. Will v Michigan Department of State Police[108] concerned the liability of the State under a federal statute, s 1 of the Civil Rights Act of 1871,[109] which prohibited the violation by any ‘person’ of another’s constitutional rights.[110] The question arose as to whether the State was a ‘person’ for this purpose. The Dictionary Act of 1871 c 2,[111] decreed that in federal statutes the word ‘person’ was to include ‘bodies politic and corporate’. This question was thus very similar to that which confronted the High Court of Australia in Bass.[112]

The Supreme Court held that ‘person’ did not include the State.[113] In the first place, there was a rule that the word ‘person’ did not include sovereigns such as the States.[114] Obviously, this rule is closely related to the presumption, although the Court did not actually say that it is a derivation of the presumption and it is nowadays generally referred to as a ‘clear statement’ rule. We have already seen that the word ‘person’ was similarly read down in express reliance on the presumption, in order to exclude the government in, for example, the Canadian Transport Commission case.[115] Certainly the result produced by this rule cannot be distinguished from the result produced by the presumption, under which general words (such as ‘person’) in a statute are presumed not to include the government. The ‘person’ rule is consequently worthy of support for the same reasons as the presumption itself.

In addition, said the Court in Will, the Dictionary Act’s inclusion of ‘bodies politic’ in the word ‘person’ was not strong enough to bring the States within that word; rather, this phrase referred to municipal corporations.[116] A clear manifestation of an intention on the part of Congress to include the States in that term was lacking.[117] This is surely right: an interpretation Act should not be held to overthrow an ‘old and well-known’[118] rule by a side-wind unless there is no other reasonable interpretation of its provisions. The Court’s judgment shows that there is such an interpretation.

Brennan J delivered a dissenting judgment in Will on behalf of himself and Marshall, Blackmun and Stevens JJ. It is important to note at this point that the federal statute involved in this case was a civil rights statute (Mr Will had allegedly been denied promotion in the Police Department because of his brother’s record as a student activist!) and to recall Brennan J’s positive attitude to such statutes. Unfortunately, however, his Honour’s zeal to redress the wrong allegedly suffered by Mr Will produced a rather questionable opinion.

His Honour made many points in his vigorous rebuttal of the majority’s opinion. Here it is necessary to consider only one of them. He stated, in purported reliance on US v California,[119] that the rule about the meaning of the word ‘person’ applied only to the enacting sovereign.[120] However, as we saw above, the context in which the enacting sovereign was referred to in US v California strengthens rather than weakens the view that presumption-like rules are available to sovereigns other than the enacting one. Having wrongly interpreted this authority, his Honour cited no other authorities which might have supported his view of the presumption.

This is not surprising, because no such authorities exist. The cases above show that his Honour’s opinion is not in accordance with the precedents. In addition, the analysis of US v California which was offered above shows that the Court in that case, while refusing to apply the presumption to the commercial activities of the government, did not doubt that the presumption was generally applicable in federal cases. If this were not so, the Court in US v California would simply have declared that the presumption was not applicable in federal cases and would not have needed to distinguish between governmental functions (to which it is applicable) and commercial functions (to which it is not). It is probably correct to say that the view which Brennan J (dissenting) has always taken on the desirability of civil rights statutes led his Honour to an incorrect interpretation of the law so as to maximise the reach of the statute.

With this one exception in a dissenting judgment, the decisions considered above show that the law of the US corresponds in all essentials, and despite the different name given to the doctrine, with the law of Canada. Admittedly, Hancock v Train held that the presumption applied with especial force when a State statute and the federal government are involved, owing to the fact that the States are subordinate.[121] The federal government can protect itself from State legislation, for example, under the Supremacy Clause,[122] whilst the States cannot. Accordingly, it might well be thought that the presumption should have applied in order to protect the States from the federal government, rather than to protect the federal government from the States, particularly as the federal government has other means of defending itself from unwelcome State laws. This is perhaps why this doctrine has not been recently enunciated by the Court, which nowadays, under the ‘clear statement’ rule, seems to take the more sophisticated approach of recognising that it is precisely the subordination and vulnerability of the States which justifies some hesitation before concluding that Congress’ statutes apply to them.

The restriction of the presumption to ‘governmental’ functions suggested in US v California[123] is also highly unsatisfactory. There are insoluble problems of definition with this distinction. For example, in US v California the State seems to have been running a form of public transport. Why this is not a ‘governmental’ function but a ‘proprietary’ one was not satisfactorily explained by the Supreme Court. At least from an Australian perspective — for this question is relevant here too having regard to certain views expressed in the High Court of the 1990s[124] — it would be hard to deny that public transport can be a ‘governmental’ function. Although public transport involves running what might loosely be called a business, it is not very often run for profit and is considered no less essential to the smooth running of society than the provision of sewerage or the collection of rubbish. If public transport involves competition with private companies which also provide transport, so too does the post office compete with private couriers — but this does not mean that the post office does not perform a core governmental function. Where, then, is the criterion for distinguishing between governmental and non-governmental functions to be found?

The answer can only be that the criterion depends on the individual predilections and personal views of judges about what the core functions of government are. This in turn shows that the problem with the distinction between governmental and proprietary functions is more than definitional. It is surely the province of the electors who choose the government, not that of the courts, to say what the functions of the government are. The electors who chose the government of California may well have thought that the government would be failing in its duty if it did not provide public transport in order to assist those who cannot afford to run a car and to reduce pollution and traffic congestion. Another set of electors electing the government of another state may be of the view that the government is an inefficient provider of transport and that this function should therefore be left to private enterprise. Nevertheless, in each case the choice is the electors’, or at the very least the elected government’s, not the unelected courts’. The courts cannot decide whether public transport is a ‘governmental’ function without adjudicating on quite fundamental issues of political philosophy, such as the role of the state in relation to private enterprise. This the courts are neither equipped nor entitled to do.[125]

Nor is there necessarily a dichotomy between governmental functions and trading activities. As the High Court of Australia has recently pointed out,[126] the government may decide that it needs to carry on what many would class as a trading function in the public interest. Perhaps an essential service is so unprofitable that no-one could possibly carry it on for profit; perhaps a function (such as water supply) involves a natural monopoly and is of such importance that it cannot be entrusted to persons who are not responsible to the community. The government accordingly fills the community’s need by carrying on the trade in question. In such a case, it is at least arguable that the trading function carried on by the government in the public interest becomes governmental.

These considerations are especially relevant in intergovernmental cases. Respecting the right of the states to operate without undue interference from the union necessarily involves respecting the choice made by the states to perform any functions which they may choose to perform. If the electors of a state decide that they want a certain function to be performed by their state government, it is not for the union or the courts to tell them that their choice is wrong or unusual and so must nevertheless be subject to federal laws which do not evince an intention to control the more traditional functions of government. Anything else compromises the autonomy of the states, which should remain free to decide what functions they should take on without incurring a penalty for doing so, and diminishes the right of the electors in the states to elect a government which carries on whatever functions they feel should be provided by the government.

It is true that the distinction between governmental and proprietary functions looks somewhat like the distinction in international law between acta imperii (acts of official authority) and acta gestionis (acts of management) which has become current in England in the last 20 years.[127] However, this development should not be relied on to support a comparable rule in federal disputes, because there are important differences between international and domestic law. International law provides sovereigns with an absolute immunity from suit. There is therefore good reason to restrict this immunity to acta imperii — otherwise, acta gestionis would be outside the reach of the law entirely, and trading by foreign governments would be very difficult to control. The presumption, on the other hand, may be overridden by the legislature. If an exemption from a particular statute for the activities of state governments causes inconvenience in the federation, the legislature can remedy this. Accordingly, it is not necessary to restrict the presumption to non-trading activities in the same way as the much less flexible system of international law restricts the doctrine of sovereign immunity.

At any rate, international disputes are different from federal disputes. In a federation, all governments are part of the one country. One might therefore expect a somewhat greater degree of mutual consideration for other governments — a greater willingness to respect other governments’ decisions about the extent to which they should be carrying on trading activities — than can exist in the international arena.

A warning to all courts of the foolish and offensive statements which they can make if they intrude too far into governmental policy, or into the aims which governments choose to follow, is provided by the infamous directive of the House of Lords that local authorities might not pursue ‘eccentric principles of socialistic philanthropy, or ... a feminist ambition to secure the equality of the sexes in the matter of wages’.[128]

No doubt for reasons such as these, the Supreme Court appears nowadays to apply the ‘clear statement’ rule in all cases, without restriction to traditionally governmental functions. The reluctance to conclude that state governments really are bound may be particularly strong when fundamental structural entities within state governments, such as the courts, are in question,[129] but it is not weaker simply because commercial operations are involved. Hilton v South Carolina Public Railways Commission,[130] for example, involved a state-owned railway, but there was no indication in the majority judgment that the ‘clear statement’ rule was weaker simply for that reason.

The US v California rule about proprietary functions seems to be nothing more than an import from the older cases on the extent to which one level of government may constitutionally bind other levels.[131] No lesser judge than Frankfurter J had harsh things to say about this distinction between governmental and non-governmental functions in New York v US.[132] What he said there is equally applicable to cases involving the presumption rather than constitutional questions. It is also equally applicable in Australia.

V AUSTRALIA: THE PRESUMPTION APPLIES IN FEDERAL CASES

In 1979, before Bropho[133] liberalised the test for finding that the presumption had been impliedly rebutted by statute, the High Court held in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd[134] that the presumption is available in intergovernmental cases. This decision resolved the uncertainty, which had existed since shortly after Federation, about the applicability of the presumption in federal cases. Before 1979 some judges had held that the presumption was not available in federal cases, but only in cases where a government was seeking exemption from its own laws.[135] Fortunately, the High Court recognised in Bradken[136] that ‘[t]he authorities on this question are not altogether satisfactory’[137] and delivered a definitive statement of the law. However, the theoretical basis of this conclusion was expressed in different ways by different judges and, moreover, was not expressed convincingly in all cases. This is, it is submitted, the root of the failure to understand the role of the presumption in inter-polity cases which, as we shall see below, has persisted in Australia until quite recently.

The case arose because Bradken claimed that BHP and the Commissioner of Railways for Queensland were breaching ss 45 and 47 of the Trade Practices Act 1974 (Cth). Section 8 of the Railways Act 1914 (Qld) said that the Commissioner was an agent of the State Crown.[138] At that time s 2A of the Trade Practices Act decreed that the Act bound the Commonwealth to the extent that it carried on a business, but was silent about the States.

Gibbs ACJ, after an exhaustive review of the authorities, came to the conclusion that they on balance supported the view that all manifestations of the Crown could claim the presumption (which he called ‘the wider view’),[139] no matter which legislature’s statute was involved.[140] Reference to the cases before 1979 confirms his Honour’s view that the weight of authority is in favour of the wider view, but also shows that the qualification ‘on balance’ is necessary to take account of the substantial number of judgments to the opposite effect.

His Honour said that the doctrine of Crown indivisibility — the view that it is impossible to distinguish between the various rights of the one united Crown[141] — should not be used to decide this question because it was ‘remote from practical realities’.[142] Rather, convenience and the reasons for the presumption supported the wider view; if the presumption existed because statutes are generally designed for the citizen not the government, ‘[e]xactly the same reason’[143] existed for presuming that all governments were not the intended targets of legislation. The States were not subjects of the Commonwealth;[144] hence, legislation could have a very different effect when applied to governments rather than subjects.[145] Moreover, it was ‘prudent’[146] not to apply legislation to governments if the legislator had not thought about the possible effects of doing so. If the Commonwealth had intended to bind the States, it should have said so expressly.[147]

While his Honour came to what appears to me to be the correct conclusion, his analysis is not entirely satisfactory, for it does not fully recognise the special federal reasons, which were explained above, for applying the presumption in an intergovernmental case. There are surely more reasons — not just ‘exactly the same reason’ — for exempting a government from another’s laws than there are for exempting a government from laws made by its own legislature. His Honour uses some of the standard reasons for applying the presumption in non-federal cases to justify its application in federal cases; I demonstrated earlier that these standard ‘non-federal’ reasons are not very strong while the ‘federal’ reasons for applying the presumption in federal cases are stronger. His Honour did, however, point out that the States should not be treated as if they were mere subjects of the Commonwealth, which goes some way towards recognising the federal function of the presumption.

Stephen J was reluctant to decide the issue owing to the lack of full argument on the point, but eventually supported the wider view on the grounds that the authorities were in favour of it.[148] He thought that s 2A of the Trade Practices Act was of little assistance: it could be said either that the Commonwealth assumed that its Act would bind the States and therefore did not bother to mention this in s 2A, or that it did not want to bind the States and consequently omitted them from that section.[149]

Mason and Jacobs JJ came to the same conclusion as Gibbs ACJ, but stated that the unity of the Australian Crown meant that it was appropriate to speak of the unity of Australian law[150] in relation to any particular citizen or part of Australia, and that the whole body of Australian law, whatever the source of individual portions of it, was to be presumed to have been made for subjects and not governments.[151] The theoretical basis of this view may be doubted. Although ‘Australia is one Monarchy, not seven separate monarchies’[152] and it is clear enough that the various units of the Australian federation are not foreign states in relation to each other,[153] the doctrine that the (Australian) Crown is one and indivisible is highly suspect owing to the existence of separate governments which are carried on in its name.[154] The doctrine admittedly emphasises the fact that Australia is one nation, but this is surely a more fundamental fact than the existence of a single Crown. Australia would remain a single nation even if the Crown disappeared; the doctrine of Crown unity is a consequence, not a cause, of other facts. It seems rather odd, then, to build the foundation of a new doctrine about the unity of Australian law on such a shaky foundation as the doctrine of Crown unity. Although Australia clearly enough enjoys the benefits of one overall system of jurisprudence,[155] it might be thought just as artificial, in a country in which legislative as well as executive powers are divided, to proclaim a legislative unity as it was to proclaim a unity of the executives under the name of the doctrine of Crown unity. In any event, if the presumption is applicable in intergovernmental disputes, then the reasons for its applicability should be more convincing than that.

Their Honours’ view of the effect of s 2A of the Act is somewhat less questionable. In their view the expression of an intention to bind the Commonwealth in an Act which is silent about its effect on the States leads to the conclusion that the States are not bound.[156] Their Honours did not agree with Stephen J that the failure to mention the States in the Act was equivocal. Their Honours’ view is preferable. The effect of the Act on the States, which have a stronger claim than the Commonwealth to a presumptive exemption from Commonwealth laws, cannot be equated with the effect of the Act on the Commonwealth. The Commonwealth should not be allowed to bind the States merely by enacting that it, the Commonwealth, is bound; it should be necessary for it to consider the effect of its legislation on the States as a separate question involving distinct considerations.

Murphy J (who had been Attorney-General when the Act was introduced) dissented on the basis that the doctrine of Crown indivisibility was ‘inappropriate to existing circumstances’[157] (but his Honour did not tell us why this was so). His Honour also stated, without even a hint of reasoning, that ‘the interpretive rule that the Crown is not bound except by express words or necessary implication applies, in the case of [Commonwealth(?)] Acts, only to the Government of the Commonwealth’.[158]

For the first time, then, a majority of the High Court came down, after considering the applicability of the presumption in some depth, in favour of the wider view of it, and Bradken has been treated, both in the judgments which are considered below and by the commentators,[159] as a successful attempt to settle the law in this area.[160] Although this case concerned the applicability of a Commonwealth law to the States, the reasons given by the majority are equally applicable to the reverse situation, or where the question is whether one State’s law binds another.

Bradken did not, however, decide a question which is of some, although subsidiary, importance: if an Act says merely that it binds ‘the Crown’, does this, other things (such as the context in which this phrase appears) being equal, cover only the Crown in right of the enacting legislature, or all manifestations of the Crown? Cases before Bradken had established (not without some dissenting voices) the general approach in this area: the prima facie rule is that a reference in an Act simply to ‘the Crown’, without any mention of which rights of the Crown are meant, is a reference only to the ‘enacting’ Crown.[161] But this rule may be displaced if there are sufficient indications in the Act to the contrary.[162] This approach owes its origin to the dissenting judgment of Dixon J in Uther v Federal Commissioner of Taxation.[163]

Various reasons were given for this approach before Bradken; it is probably best to regard it simply as a corollary of the wider view of the presumption (ie of the view that general words, even ‘the Crown’, will not normally be enough to bind other governments) combined with the laudable idea that a legislature should not be taken to have intended to bind other jurisdictions’ governments unless it makes such an intention unambiguously clear. It is also surely relevant that, when a Parliament wants to bind not just ‘the Crown’ but all manifestations of the Crown, it can say so expressly (and is increasingly doing so).[164] If this reasoning is correct, it is not surprising that the rule continued after Bradken. Gibbs ACJ’s rejection of the doctrine of Crown indivisibility would seem to indicate that ‘the Crown’ would often mean the legislating Crown alone; and the rule also ensures that other manifestations of the Crown are not treated as mere subjects to whom laws extend as a matter of course, as Gibbs ACJ would wish. The effect of the other judgments in Bradken on this rule is less obvious. The more philosophical tone of the remarks of Mason and Jacobs JJ may indicate that they did not have this practical problem in mind at all, while Stephen J was very reluctant to decide anything more than he had to.

It might have been thought that the reference to the doctrine of Crown unity by Mason and Jacobs JJ suggested that they would interpret a reference to ‘the Crown’ as a reference to all emanations of it. But their Honours could not ignore reality completely by refusing to recognise the existence of several separate governments under the Crown. Four months after Bradken, Mason J, with whom Murphy J agreed on this point, held in Superannuation Fund Investment Trust (Commonwealth) v Commissioner of Stamps (South Australia) that the Trust was an agency of the Commonwealth and accordingly not included in ‘the Crown’ in item 13B of the Second Schedule to the Stamp Duties Act 1923 (SA), which exempted from stamp duty instruments lodged for conveyance to ‘the Crown’.[165] Mason J’s view that this should be considered a reference only to the State Crown was strengthened by other references to the Crown[166] which were clearly references to South Australia.[167] (In Mason J’s view, it was not necessary to consider whether the presumption might have exempted the Trust from the State Act independently of the exemption conferred by item 13B, as the Superannuation Act 1976 (Cth) impliedly subjected the Trust to State legislation imposing stamp duty.)[168] The approach taken here was along the lines mentioned above: starting out from the position that ‘the Crown’ will normally mean only the ‘enacting’ Crown, Mason J looked at the language and purpose of the statute to see what indications the legislature had given about the meaning of ‘the Crown’. This process has been carried out in so many cases that it may now be regarded as established: in Commonwealth v Evans Deakin Industries,[169] the parties agreed that a reference to ‘the Crown’ in an Act of the Parliament of Queensland did not refer to the Commonwealth.[170]

Shortly after Bradken, it was confirmed in China Ocean Shipping v South Australia[171] that the Crown in right of South Australia could claim the presumption in relation to an Imperial Act, the Merchant Shipping Act 1894 (Imp) 57 & 58 Vict, c 60.[172] Section 503 of this Act limited the amount which a plaintiff could claim from a defendant in a suit for damage caused without the actual fault or privity of the owner of the guilty ship. However, here the plaintiff was South Australia,[173] and the question was whether the presumption applied to it as plaintiff,[174] when it had not enacted the Merchant Shipping Act and could not, owing to s 2 of the Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63, even amend the Act.[175] Gibbs J cited Bradken to show that the presumption applied — as I suggested above was the effect of Bradken — not just to the States when Commonwealth laws are involved, but ‘to the Crown in all its capacities’,[176] and that therefore South Australia could take advantage of it even in relation to an Imperial Act.[177] Stephen J, while finding it unnecessary to refer to Bradken or to decide whether the legislation of one member of the British Commonwealth would apply to the Crown in right of another member,[178] stated that if Imperial legislation was inapplicable to the Crown, it was inapplicable both to the Imperial Crown and to the Crown ‘in right of any colony’.[179]

Murphy J (dissenting) decided the case on a different ground.[180] Aickin J simply assumed that the presumption applied.[181] Barwick CJ (dissenting) also assumed that South Australia could claim the presumption,[182] but found that it was rebutted because a necessary intention appeared that the Crown should be bound by the statute.[183]

VI REBUTTING THE PRESUMPTION: THE DEATH OF NECESSARY IMPLICATION?

In Bropho[184] the High Court of Australia dealt with the circumstances in which an Act which does not expressly rebut the presumption will be held to have done so impliedly.

In England it had been held in Bombay[185] that an implication would not appear unless the statute would be ‘wholly frustrated’[186] if the Crown were not bound by it; the Privy Council held that it was not enough to show that the legislation would merely fail to operate efficiently if the Crown were not bound.[187] This rule was confirmed for the whole of the United Kingdom by the House of Lords in Lord Advocate v Dumbarton District Council,[188] when it rejected an attempt at judicial reform of the law by the First Division of the Inner House of the Court of Session.[189] This is a very strict test,[190] often referred to as the test of ‘necessary implication’. It seems to contemplate legislation such as a Crown Proceedings Act, which would be entirely ineffective if it did not apply to the Crown.

In Australia, however, the attempt at judicial reform succeeded in Bropho.[191] The case concerned s 17 of the Aboriginal Heritage Act 1972 (WA), which prohibited the destruction of an Aboriginal site; the Act contained no express provision about its application to sites on Crown land. However, s 6 decreed that the Act applied to all places in Western Australia, and various other provisions of the Act emphasised its universal application. The High Court held that the presumption was rebutted by the Act.[192]

Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ saw ‘no significant problem of principle’[193] with the existence of the presumption as an aid to statutory construction; the real problem was with the requirement of a necessary implication, which was too strict and had caused a presumption to harden almost into an inflexible rule.[194] The stringent test in Bombay was no longer appropriate in the modern world because of the enormous number both of functions performed by the Crown and of bodies which are entitled to Crown immunity; the presumption had been developed at a time when the Crown’s activities were much less far-reaching than they are today.[195] There was, therefore, no justification for the ‘inflexible rule’,[196] which required a necessary implication for the Crown to be bound by statutes. Moreover, there was, their Honours speculated, a considerable number of statutes in relation to which Parliament had intended to bind everyone, including the Crown, but had merely forgotten to say so.[197] It was therefore necessary to recognise that an intention to bind the Crown might appear even when the Bombay test of necessary implication was not satisfied; such an intention could be manifest from the subject matter and purpose of the statute, construed together with both the presumption against the subjection of the Crown to statutes and permissible extrinsic aids to the interpretation of the statute.[198] This was not, however, to overturn the settled construction of existing legislation;[199] indeed, in construing statutes passed before the decision in Bropho, it might be necessary to take account of the general acceptance of the rule in Bombay.[200]

In the case of the Aboriginal Heritage Act 1972 (WA), their Honours continued, it was clear from various provisions that it was intended to apply to all land in Western Australia, no matter who the owner was. As 93 percent of Western Australia was Crown land and 50 percent of this vacant Crown land, the Act would have been an ‘extraordinarily ineffective’[201] piece of legislation if it did not bind the Crown. The Act therefore applied to Crown servants acting in the course of their duties, if not, owing to the fact that s 17 created a criminal offence, to the Crown itself.[202]

Brennan J delivered a short concurring judgment. It was important to his Honour not to exempt Crown servants from the general criminal law,[203] including s 17, which would be the effect of the stringent test laid down in Bombay.[204] His Honour agreed with the analysis of the majority[205] and stated the Crown was not bound by a statute ‘unless a contrary intention can be discerned from all the relevant circumstances’.[206] It will be apparent from statements such as this that Bropho has severely weakened the strength of the presumption by relaxing the requirement for a necessary implication.

This case dealt with whether a State Act bound the Crown in right of that State. It is included in this article on the presumption in federal systems because their Honours did not say whether the new approach applied also to cases in which an intergovernmental dispute must be resolved. If, as was said above, the presumption performs a different and more defensible function in federal cases, it could be argued that it would be wrong to apply the weakened presumption propounded in Bropho in such cases, at least if the changed context is not taken into account in applying the new rule.

VII THE EFFECT OF BROPHO ON BRADKEN

The law on the applicability of the presumption in federal contexts appeared fairly settled and certain until Bropho was decided. What influence has it had on the protection offered in the federal context by the presumption? Since Bropho was decided, Australian courts other than the High Court have not always appreciated the difference between federal and non-federal cases involving the presumption,[207] and the effect of Bropho on the presumption in its federal context does not appear clearly from their judgments.

It was, in the first months after Bropho was decided, at least arguable, given the vast difference between the federal and non-federal contexts in which the presumption may appear, that Bropho did not apply at all in federal cases but was concerned only with the effect of statutes of one jurisdiction on the government of that jurisdiction.[208] On this view, in federal cases only an expression of legislative intent to bind other governments in the federal system or a necessary implication to that effect would suffice. At all events, it would certainly be wrong to apply Bropho in a federal case but to ignore the radically changed context in which the presumption is to be applied, especially as that case itself decrees that all the relevant circumstances are to be considered in deciding whether the presumption is rebutted. In accordance, however, with the general neglect of this obvious distinction, the commentaries on Bropho published immediately after the decision made no mention of what, if any, effect it would have on the federal balance.[209] As we saw above, the judgments in Bradken did nothing to promote awareness of this distinction; they seemed to assume that the presumption was the same, no matter what the context. If those judgments were taken as the guide, it would seem logical to apply the weakened presumption in inter-polity cases as well. Indeed, that is what initially happened.

The first post-Bropho case in the High Court was Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation.[210] The Registrar, a Victorian official, claimed to be exempt from taxation under the Income Tax Assessment Act 1936 (Cth) of the income from compensation payments which were held for the victims of accidents or their relatives. Mason CJ, Deane, Toohey and Gaudron JJ thought that the Registrar was a trustee of the payments,[211] but not as a servant of the Crown; the Registrar’s functions as a public official were, said their Honours, quite separate from functions as a private trustee for victims, in which latter capacity the Registrar was not performing obligations on behalf of the Crown.[212] Accordingly, there was no reason to apply the presumption here: exempting the Registrar from taxation would not benefit the Crown.[213] Bropho was cited: it showed that the question whether the presumption should apply in any case was to be resolved by considering all the circumstances.[214] The fact that exempting the Registrar would not benefit the Crown, because the Registrar was not a servant of the Crown in the relevant capacity, was one of those circumstances.

If the view that the Registrar was not claiming an exemption for Crown revenue but for private income is accepted (and it is not within the province of this article to consider whether it is correct), this decision is easily defensible. The invocation of Bropho in support of the view that the presumption is not available when it would not benefit the Crown was probably unnecessary; the same result could have been achieved by calling in aid the more general consideration that the presumption exists to protect the Crown only, not private rights (unless they are so inextricably bound up with the Crown’s rights that severance is not possible, which was not the case here).[215] However, it is certainly worth noting that the Court did in fact consider Bropho relevant in this federal case. It did not consider whether that approach should be modified to take account of the federal context, but in the circumstances this is hardly surprising.

The second and more notable case in this area which reached the High Court is Jacobsen v Rogers.[216] The Fisheries Act 1905 (WA) s 18 required fishers[217] to furnish information to the State Fisheries Department. Search warrants were issued under s 10 of the Crimes Act 1914 (Cth) for the seizure of documents containing that information; it was suspected that income tax was being evaded in the crayfish industry and that the documents would contain evidence of the evasion. No express indication of Parliament’s intention about the ambit of s 10 in relation to the Crown appeared. The State government therefore claimed that s 10 did not bind it, but the Court held that it did.[218]

The three judgments in this case are remarkable for the sophistication of their reasoning; each is in its own way convincing. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ gave the leading judgment. Their Honours started off on the right foot by affirming that Bradken was still good law and stating that it was unnecessary to consider whether that case rested on the ‘controversial and somewhat artificial doctrine’[219] of Crown indivisibility or rather on the basis that there was only one body of law in a federation (albeit with different sources) to which the presumption applied. Their Honours clearly thought this latter view preferable to the doctrine of Crown unity, but, unlike Mason and Jacobs JJ in Bradken, did not perceive the close connection which exists between the two views.

It will be recalled that in Bropho the majority had said that the presumption may have to be applied in a rather stronger form to statutes enacted when it was thought, in accordance with Bombay, to be the common law that the Crown would be bound only by a necessary implication. This reasoning was taken a step further in Jacobsen. Section 10 had been enacted on 29 October 1914, which was well before the decision of 10 October 1946 in Bombay. At that time, said their Honours, Australian cases were propounding a less strict requirement than that laid down in Bombay. Accordingly, there was no reason why Bropho should not be applied to s 10; there was no reason to think that the very strict test laid down by the Privy Council would have been in the contemplation of the legislature which enacted s 10.[220]

Their Honours considered and rejected the view that the Crown, in seeking a search warrant, was consenting to a search of its own premises; this ignored the fact that one right of the Crown was searching while another, separate right was being searched.[221] This is clearly a further recognition of the artificiality of the doctrine of Crown unity. However, they then pointed out that Crown servants, as was emphasised in Bropho, enjoy no general immunity from the criminal law. The Crown, moreover, owned numerous premises on which numerous things (even things which might have nothing to do with the business of the Crown) might be stored. It could not have been the intention of Parliament, said their Honours, to exclude all such places and all such things from the reach of a search warrant under s 10. It would be inconsistent with the purpose of s 10, which was enacted to enable criminal offences to be investigated thoroughly no matter where the investigation might lead, to enable offences to go unpunished or uninvestigated simply because they required a search on Crown property. The Crown’s interest in the administration of justice (the State Crown is no less interested in this than the federal Crown) combined with these reasons to rebut the presumption in relation to s 10.[222]

There is much to be said for this point of view. Some additional reasons may be adduced in favour of it. In the first place, the Crown itself, as distinct from its servants, is not liable under the criminal law except in the most exceptional circumstances.[223] Searching the Crown’s premises is therefore most unlikely to disadvantage the Crown itself, as it is most unlikely to be charged with an offence. The Crown would have to suffer only the temporary disruption to its business which a search would cause.

Secondly, the Crown is not compelled to do anything by the issue or execution of a search warrant. It is not as if this section imposed some monetary or other liability on the State. In Bropho the State was compelled by the statute not to make use of its land; here, there was no compulsion on the Crown to do or to refrain from doing anything. It is true that a person who impeded the search could be charged with a statutory offence, but again this would be most unlikely to affect the Crown itself and would in any case require the invocation of a statutory provision other than s 10. (This might be seen as the gist of Brennan J’s judgment; in his Honour’s view, the question whether s 10 bound the Crown did not even arise, because s 10 imposed no obligations on the Crown.)[224]

The ability of the police to use search warrants on State property may be seen as a corollary of the State’s virtual immunity from the criminal law. If, as was pointed out in Registrar of the Accident Compensation Tribunal, the Crown has nothing to lose by an application of an Act, there is no reason why that Act should not be applied even in cases which incidentally involve the Crown.[225]

Thirdly, it is apparent that, on the facts of this case, the State was attempting to make use of too blunt an instrument to repel the attempted search. The State, as has been said, did not want to defeat the search to save itself from a present or prospective liability under s 10, for there was none; rather, it was concerned to safeguard its sources of information. If fishers thought that the information which they provided to the government might be used against them, they might not co-operate with the State, and this would hinder the research for which it needed the information. This extra-legal consideration (it is extra-legal because allowing a search warrant to be issued would not as a matter of law reduce in the least the legal obligation of fishers under the State Act to furnish information) was the real reason for the State’s alarm at the issue of search warrants against it. But as the majority pointed out,[226] the State might be able to claim public interest immunity when seizure of confidential information is threatened. Applying the presumption would lead to a blanket prohibition of searching State premises even where confidential information is not involved, but public interest immunity, a much finer instrument, would exempt from use in criminal proceedings only such information as is confidential and could satisfy other tests (including the test of public interest) for the existence of the immunity. This is clearly a much better way of protecting information which is said to be confidential, because it does not involve a blanket prohibition which catches all information, whether confidential or not. Rather, there is a curial investigation which is specifically designed for the purpose of weighing the competing interests involved in keeping confidential information confidential. In this case the competing interests were the public benefit involved in the research conducted by the State government and the public interest in ensuring that people pay all the tax to which they are liable.[227]

Fourthly, it is not difficult to imagine circumstances in which the police (even the Federal Police) might be investigating a fraud against the State itself. In such circumstances the State would have everything to gain by a search of its premises under s 10.

Finally, the Crimes Act 1914 (Cth) itself contains in s 3A a provision added in 1960 (to which their Honours curiously did not refer)[228] which emphasises that the Act applies ‘throughout the whole of the Commonwealth’, which may itself be seen as an attempt to rebut the presumption, or at least (given that the strict test in Bombay was considered correct in 1960) to emphasise the intention of the legislature to override any common law rules which might otherwise exempt parts of the Commonwealth from its reach.

For these reasons, the decision of the majority that s 10 binds the States seems correct. And it confirms what lower courts had hitherto assumed: that Bropho is applicable in federal cases. What is however missing in the judgment of their Honours is some recognition of the federal issues involved in applying the presumption in federal cases; there was no mention of the distinction between this case and Bropho based on the existence of federal issues in this case. This omission may be explained by the fact that no real burden was imposed on the State here, and accordingly no significant issue of the extent to which the presumption should protect the States from Commonwealth legislation arose.

It is, of course, also possible that their Honours did not perceive the distinction between the two cases or the very different policy issues involved in the application of the presumption in two different contexts. Their Honours added a post-script to their judgment,[229] apparently intended to rebut an argument by McHugh J (dissenting), which will be considered shortly and which involved the observation of Dixon J that ‘[i]n a dual political system you do not expect to find either government legislating for the other’.[230] This, they said, was made in a context which had nothing to do with the presumption, and Dixon J had moreover followed this remark with the observation that supremacy belonged to the Commonwealth. While this is true, it is also the case that this quotation provides us with an important insight into Dixon J’s theory of federalism,[231] and the very terms of the quotation support a generous attitude to governments which claim on the basis of the presumption not to be subject to the laws of another government — unless and until that supremacy is truly exercised by the expression of an intention to bind.

It may also be observed that a statement which relies on a quotation that was given in a context which has little to do with the presumption is no substitute for a consideration of the issues raised by the quotation. This rather off-hand dismissal of the argument based on Dixon J’s dictum may suggest an unwillingness to concede that the law laid down in Bropho may need modification or further development in different contexts.

Their Honours also stated that, once it was appreciated that s 10 was intended to bind the Commonwealth, it would be seen that it was also intended to bind the States.[232] If this statement was intended to lay down a general rule that any Commonwealth statute which binds the Commonwealth must also bind the States, I would respectfully disagree with it for the reasons given in Part II above. However, it is also possible that the majority intended to refer only to the specific facts of this case, in which case their statement is less exceptional. This is because all of the five reasons given above for allowing a search to take place on Crown premises apply also to the Commonwealth. For example, it too enjoys virtual immunity from the criminal law. Accordingly, it has as little to lose as the States from such a search; if, therefore, the statute applies to the Commonwealth, the reasons which lead to this conclusion apply equally, in the special circumstances of this case, to the States. That is why the statute, if it binds the Commonwealth, must, by parity of reasoning, also bind the States.

McHugh J dissented from the Court’s decision. His Honour’s judgment is a vigorous assertion of the reasons why the presumption should apply in federal disputes; he referred to some of the Canadian and US decisions on the presumption considered above.[233] Interestingly, his Honour appears to have thought that two separate presumptions exist. While agreeing with the decision in the Court below that s 10 did not bind the Crown because of the presumption, he added that there was a more important reason for holding that s 10 did not bind the State — it did not rebut ‘the presumption that the legislature of a member of a federation does not intend its legislation to apply to another member of the federation’.[234] The authority for this was the statement by Dixon J to which the majority also made reference. By expressing himself in this manner, McHugh J seems to be suggesting that there are two presumptions involved (both of which led to the same result in this case): one which applies generally in all cases (which must include federal cases, for his Honour thought that it applied here) and is expressed in traditional terms about the Crown, and one specifically for federal cases which is expressed in the unequivocally federal terms just quoted. There is no doubt that this is an unorthodox view.

The creation of another presumption by McHugh J may well be an attempt to get around what his Honour perceived to be the weakened protection which the States enjoy after Bropho. His thinking seems to be that, if the traditional presumption can no longer protect the States to a sufficient degree, another presumption will have to be imported to do the job. This certainly shows an appreciation of the need for the presumption (or some ersatz version of it) to protect the States, although there is little sign in Australian constitutional law of anything like a ‘clear statement’ approach on the broader scale on which it exists in the US.[235]

It is, of course, pleasing to find a judgment such as that of McHugh J which states so robustly the reasons why the presumption is needed in federations. However, the majority’s view is to be preferred in the special circumstances of Jacobsen for the reasons it gives and the supplementary reasons which were offered above. Section 10 simply did not impose any (significant) liability on the State Crown, while the State’s concerns about the confidential information which had been provided to it should be dealt with under a different heading.

It was otherwise in State Authorities Superannuation Board v Commissioner of State Taxation (WA).[236] This case involved the taxation of one State’s superannuation authority by another.[237] Although, in that particular context, there were clear historical and textual reasons for holding that the Act bound the Crown, it is disappointing that the Court did not consider it necessary to refer to the different and broader function that the presumption has when it is operating in the federal context as distinct from on the executive responsible to the enacting Parliament. Rather, their Honours dismissed the presumption as an issue in a few short sentences, not finding it necessary to discuss it in any great detail. Even the conclusion that the Crown was not liable to be prosecuted for an offence was reached on general principles without any thought being given to the indignity that would be suffered by New South Wales (not to mention the procedural problems that would arise, for example, with the arraignment of the accused)[238] if that State were indicted in the courts of Western Australia.[239] Nor was there any consideration of the different views of the mutual relations of the States to each other which have exercised the Court on other occasions and which might have provided some theoretical justification for the desired conclusion.[240]

Particularly disappointing was the failure by McHugh and Gummow JJ to distinguish between the protection offered to the States by constitutional doctrines and that offered by the presumption.[241] Despite their Honours’ view that one must follow the other, it might be thought that there was a good case for strengthening the presumption to make up for any lack of constitutional protection, not for weakening the presumption precisely when it is most needed. No doubt the fact that Western Australia was ‘engaged in commercial dealings apparently on the same basis as any entity making a commercial investment’[242] influenced the Court’s decision that it should be taxed in the same way as any commercial body.

However, the Court should have explained in greater detail why the federal aspect of the presumption could not prevail here. It would clearly be pointless for one government to tax itself (or at least it would not necessarily require legislation to achieve the necessary intragovernmental transfers of money),[243] so it is not surprising that Western Australia did not consider this issue when enacting its legislation; all the more reason, then, why it should be compelled to consider this issue quite specifically in relation to other States by a fairly strict application of the presumption in all cases. This is especially so given that, traditionally, Australian courts, unlike American courts, have not presumed to determine what the government ‘should’ be doing or what its ‘essential’ functions, as distinct from the optional extras, are.[244] If an Act of an Australian Parliament expresses an intention to allow an entity to enjoy the ‘shield of the Crown’, effect is given to that intention according to its terms, and the entity involved will be entitled to Crown immunities.[245]

Some support for the view that, despite the presumption, there is little reason to object to the taxation by Western Australia of a commercial arm of the government of New South Wales may be gleaned from the statement by Dawson, Toohey and Gaudron JJ in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[246] that the presumption has ‘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’.[247] Is Australia moving, in the middle of a period of contraction in governmental activity in which privatisations of formerly governmental enterprises seem to occur almost daily, and despite the traditional reluctance of the courts to draw this distinction, towards a two-tier presumption: stronger for ‘really’ governmental activities, and weaker for ‘commercial activities’? The obvious problems with this distinction and the reasons why it should not be applied in intergovernmental cases were dealt with in conjunction with the discussion of American law above.

VIII NECESSARY IMPLICATION REDIVIVUS?: TWO

CASES FROM 1999

As will now be shown, Commonwealth v Western Australia[248] seems to mark a change in the High Court’s attitude to the presumption and a realisation of the point missed in and since Bradken — that the presumption is a different thing in inter-polity cases. The question is how far-reaching that change is — whether it applies only in cases in which the Commonwealth’s subjection to State statutes is in issue, or to all intergovernmental cases.

The change has come about because two of the essentially three judgments on the issue considered here seem to show an appreciation of the point raised by McHugh J in Jacobsen, but in the reverse situation: a case involving the Commonwealth government and a State statute. The case concerned land occupied by the Commonwealth for the purposes of defence, surely the classic example of a ‘truly’ governmental function. However, this was not cited in any of the judgments as relevant to the decision on the presumption. Is it, therefore, a mere coincidence that the presumption was applied with greater force here? At any rate, the question in the case was whether the Commonwealth’s land could be the subject of an application for mining exploration licences under the Mining Act 1978 (WA). The facts were complicated and it is unnecessary to summarise them here. It suffices to say that that Act contained no provisions expressly binding the Commonwealth Crown. However, it did apply to ‘Crown land’, but there were wide-ranging exemptions from that application for State purposes.[249] The Court concluded unanimously that the Act did not apply to the Commonwealth.

The clearest instance of the application of a specifically federal presumption to reach that conclusion is the judgment of Hayne J, with whom McHugh and Callinan JJ agreed on this point.[250] Hayne J referred several times to ‘the presumption that one polity does not intend, by its legislation, to affect the other polities in the federation’[251] and held that, unlike the non-federal presumption, that presumption should not be considered to vary over time according to the strength attributed to it when the legislation in question was enacted.[252] This clearly distinguishes the presumption in this context from Bropho and directly contradicts what was said by the majority in Jacobsen.[253] His Honour also stated that one should be ‘slow to reach’[254] the conclusion that a State statute which exempts State land does not also exempt Commonwealth land. Otherwise, differential treatment of State and Commonwealth land would be permitted.

For the reasons given above, one might wish that his Honour had added only this: that the Commonwealth’s claim for exemption from a State statute is stronger than, not the same as, the State’s. Instead, he stated that, if the State Act applied to all land in the State (that is, did not exclude State land), that would be ‘a powerful indication’[255] of its intention to bind the Commonwealth also. Nevertheless, the appreciation of the difference between the federal and non-federal contexts and functions of the presumption is most welcome.

Almost as clear a case of this distinction is provided by Gummow J’s judgment, with which Kirby J agreed on this point. (This agreement presumably extends to Gummow J’s reasons, although Kirby J did not, in contrast to his expressions of agreement on other issues, expressly state that he agreed with the reasons on this point.)[256] In any event, Gummow J referred to the need for the law to evince a ‘necessary intendment’[257] that the Commonwealth should be bound, which might well be seen as a reference to the more stringent pre-Bropho test; on one view of Bropho, it simply removed the word ‘necessary’ from the test for whether a statute binds the Crown.[258] Later, his Honour referred to the need for a plain indication of the legislature’s intention to take the serious constitutional step of providing for the taking or resumption of Commonwealth land.[259] His Honour was also reluctant to hold that the phrase ‘alienated from the Crown’ included a reference to ‘alienation from one body politic in the federal structure to another’.[260]

Finally, there is the judgment of Gleeson CJ and Gaudron J. As well as re-naming the presumption in a much more wordy and confusing fashion, their Honours thought that they were dealing with a separate, but related presumption, that against divesting the Crown of its property or rights without clear words.[261] However, that presumption too applied to all polities in the federation.[262] Their Honours held that, if the enacting polity expresses an intention about whether its own government is bound but is silent about others, that will normally lead to the conclusion that the enacting polity has recognised that its statute is inappropriate for governments; and that will mean that the statute will not be applied to those other governments.[263] Their Honours thus came easily to the conclusion that the Western Australian Act did not apply to the Commonwealth. They too referred to the need for a necessary implication that the Crown should be bound before a statute would be applied to it, relegated the mention of Bropho to a footnote and said there only that it rules out using ‘a stringent test of necessary implication’.[264] On what words does the emphasis fall in this phrase?

It is also worth noting that, in Bass,[265] another case decided in 1999, six Justices clearly distinguished between the federal and non-federal contexts in which the presumption appears, although no statement about its relative strengths in the two contexts was made. This is not surprising, as the case did not strictly involve the presumption at all. The case involved, yet again, the Trade Practices Act 1974 (Cth), so the appellants were faced with weighty authority that the presumption exempted the States from the Act.[266] They therefore decided to try another tack: they argued that the State of New South Wales was a ‘person’ and therefore subject to the Act under ss 6(3) and 75B(1) which apply the Act, in circumstances which it is not necessary to describe further here, to persons rather than just to corporations. Like Mr Will in Will,[267] they argued that the State was a ‘person’ because a general interpretation Act[268] defined that word to include ‘a body politic or corporate’ and the State was a body politic.[269]

The whole Court[270] gave this argument short shrift. Their Honours thought that the presumption as such was not strictly applicable, as the question was rather about the meaning of the statutory texts; but it is the result and the reasoning, not the label, which is important. The Court pointed out that, although the facts in the case arose before the enactment of ss 2B and 2C of the Act applying it to the States so far as they carry on a business,[271] s 2A, which applied the Act to the Commonwealth as far as it carried on a business, was in operation when those facts arose. Accordingly, there was no room for the Commonwealth to be bound simply by the use of the word ‘person’ to a greater extent than expressly contemplated by s 2A, which was clearly an exhaustive expression of Parliament’s intentions in this respect.

This in turn showed that the word ‘person’ could not be given, in relation to this Act, the full ambit of its definition in the interpretation Act. Moreover, if the word ‘person’ in ss 6(3) and 75B(1), which clearly did not include the Commonwealth, did include the States, their activities would be covered whether they were operating a business or not. It was ‘extremely unlikely’,[272] said the majority judgment, that the Commonwealth would intend to subject traditionally governmental functions of the States to the Act, especially as, under s 2A, it was not itself so subject.

There are surely very strong echoes of the presumption properly so called here: the unstated reason why it was so ‘extremely unlikely’ is simply that, as was pointed out in Part II above, statutes (and especially this statute) applying to governmental activities that must be monopolies, for example taxation, may have very different and unintended effects from those that apply to private persons. That is why s 2A had provided an exemption for the Commonwealth, and why it was appropriate to exempt the States — whether under the presumption or because they do not come within the word ‘person’. Moreover, the Court’s limitation of the ambit of the word ‘person’ in relation to the States is attributable, at least in part, to the provisions of s 2A, which deals with the extent to which the Act displaces the presumption that the Commonwealth is not bound by it. There is thus an interaction between the meaning of ‘person’ and the presumption.

It can therefore be seen that, as was pointed out in connection with the discussion of Will, the Court’s conclusion about the ambit of the word ‘person’ is worthy of support for the same reasons as the presumption itself. Which label the Court chooses to use is a matter of indifference (except, apparently, to it),[273] as long as it protects the States from the unintended application of Commonwealth legislation to them. That is what it did here. Indeed, it may be hoped that this case indicates that the Court is aware that the need of the States for protection from Commonwealth statutes does not depend on whether the presumption is, in strict law, applicable or not, but is a requirement of good federal practice that is independent of labels and pigeonholes.

Objections were outlined above to the courts’ creation of a category of ‘traditionally governmental’ as distinct from ‘business’ activities of the government.[274] However, the Act considered here, enacted of course by Parliament which, unlike the courts, is competent and authorised to make these distinctions, had in fact made such a distinction in this area of the law. In relation to Acts that do not authorise the court to make a division between ‘business’ functions of government and other functions, it should not be forgotten that the phrase ‘body corporate’, so far as it is included by interpretation provisions within ‘person’, might include, as in Will, municipal corporations only,[275] and perhaps also those many bodies, such as The University of Melbourne,[276] that are described as bodies corporate by the legislation that sets them up. This is a somewhat less implausible meaning of the word ‘person’ than is produced by extending it to include entire governments.

IX CONCLUSION

Australian authority on the presumption that statutes do not bind the Crown in the intergovernmental context appears to be in a state of flux. On the one hand, there is the majority decision in Jacobsen, a case concerning State governments and Commonwealth statutes, which completely ignores the presumption’s different function in inter-polity cases. On the other hand, there is the decision in Commonwealth v Western Australia, in which two judgments expressly, and one arguably, recognised that different function — but in a case involving the Commonwealth government and State statutes. As we saw in Part II above, that is precisely the situation in which s 109 of the Australian Constitution and intergovernmental immunity doctrines combine to make the presumption almost superfluous. It is in the Jacobsen situation — Commonwealth statute, State governments — in which it is needed most.

There are good reasons why the presumption should be available to the States in the Australian federation when the applicability of Commonwealth laws to them is in issue: the presumption merely reflects their autonomy and independence from the federal government and ensures that they are not treated simply as its subjects. It is their last line of defence against the universal application of Commonwealth statutes to them, regardless of the suitability of such statutes to governments, as distinct from individuals, and of the unique status of the States in the federal system. It is also the case that Australian law will be out of step with the law of Canada and the US if it does not recognise that the presumption has an important role to play in achieving a just federal balance. Whatever the fate of the medieval presumption in a unitary system, it has, in a federation, a new and real purpose.

It is therefore to be hoped that the strengthening of the presumption that seems to be apparent in Commonwealth v Western Australia is continued and extended to the States as well as to the Commonwealth. It may be hoped that Bass indicates an awareness of the need to ensure that, whether the presumption is technically applicable or not, the States require some protection from the unrestricted application of Commonwealth statutes to them. At the same time, any thought of restricting the application of the presumption in the intergovernmental context to traditionally governmental or non-commercial functions should be abandoned — except in cases in which Parliament, rather than the courts, has expressly drawn and authorised such a distinction.

It would be quite wrong to apply the presumption in the stronger form recognised in Commonwealth v Western Australia only in favour of the Commonwealth, which has enough aces up its sleeve already. Commonwealth v Western Australia should therefore be regarded as superseding the approach — if not the actual result — in Jacobsen so far as it weakens the protection afforded to the States by the presumption. The case can clearly be read in that sense and, moreover, it would be appropriate to do so.

[*] BA (Hons), LLB (Hons) (Adel), LLM (Marburg), GCLP (SA); Barrister and Solicitor of the Supreme Court of South Australia; Lecturer in Law, The University of Adelaide. I am extremely grateful for the comments of Rosemary Owens and the referees on this article and on earlier drafts of it. Needless to say, the errors that remain are mine alone.

[1] [1947] HCA 26; (1947) 74 CLR 31 (‘State Banking Case’).

[2] 17 US [1819] USSC 5; (4 Wheat) 316 (1819).

[3] Hereinafter almost always referred to as ‘the presumption’. But for objections to this phrase, see Commonwealth v Western Australia (1999) 196 CLR 392, 410 (Gleeson CJ and Gaudron J); Bass v Permanent Trustee [1999] HCA 9; (1999) 73 ALJR 522, 527 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (‘Bass’); Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 674 (Gleeson CJ, Gummow and Hayne JJ). A related rule extends to Crown grants, which do not bind the Crown itself: Dixon v London Small Arms Corp (1876) 1 App Cas 632. Cf Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, 19 (Knox CJ and Starke J).

[4] This sentence assumes that one government is in need of ‘protection’ from the laws of another, but this is not always the case. There are instances where a statute does not impose a burden but confers a benefit, or a benefit coupled with restrictions on its exercise; it must be remembered that not all legislation prejudicially affects those who are subject to it. Where this is so, there is no reason at all why one government should not be able to take advantage of the benefit conferred generally on everyone else by another government’s legislature — otherwise the Commonwealth could not, for example, register its title to land under the Torrens System statutes: cf Commonwealth v New South Wales [1918] HCA 44; (1918) 25 CLR 325, 340 (Isaacs and Rich JJ dissenting); Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1, 28 (Knox CJ and Starke J).

The law is that the Crown is entitled to enjoy the benefit even of a statute which would, if the statute imposed a burden, not bind the Crown because of the presumption, provided that the Crown complies with any incidental burdens placed on the exercise of the benefit by the legislature (eg time limits, filling in forms, paying costs, accepting a reduction in damages, etc). See generally A-G (British Columbia) v Royal Bank of Canada (1936) 51 BCR 241, 262ff (Macdonald JA); Reid v Canadian Farm Board (1937) 4 DLR 248; Dalgety & Co Ltd v The Queen [1942] WALawRp 12; (1942) 44 WALR 49, 63 (Dwyer J); Asiatic Steam Navigation Co Ltd v Commonwealth [1956] HCA 82; (1956) 96 CLR 397; Minister of Works (SA) v Pinchbeck [1969] SASR 240; McGraw Hinds (Australia) Pty Ltd v Smith [1979] HCA 19; (1981) 144 CLR 633; Canada Trust Co v The Queen in Right of Canada [1982] 2 FC 722, 738 (Cattanach J); Alberta Government Telephones v Canadian Radio-Television and Telecommunications (1989) 2 SCR 225, 284–91; 61 DLR (4th) 193, 236–41 (Dickson CJ; McIntyre, Lamer, La Forest and L’Heureux-Dubé JJ concurring); Re Bank of Canada and Canadian Commercial Bank (1989) 64 DLR (4th) 363 and the cases cited therein at 367; Alberta Home Mortgage Corp v Castleridge Apartments Ltd (1994) 115 DLR (4th) 1, 6ff.

This doctrine is applied extensively in Canada, even where the burden is created by one statute and the benefit by another: see, eg, R v Murray [1967] SCR 262, 268; 60 DLR (2nd) 247, 252–3 (Taschereau CJ, Fauteux, Martland, Judson and Spence JJ); Re Farm Credit Corp and Dunwoody; A-G (Alberta), Intervener (1988) 51 DLR (4th) 501; Sparling v La Caisse de Dépôt et Placement du Québec [1988] 2 SCR 1015; 55 DLR (4th) 63. The second case appears at first sight to verge on an attempt to reform the law altogether. However, it was classified, I think rightly, as a benefit–burden case in Re Bank of Canada and Canadian Commercial Bank (1990) 64 DLR (4th) 363, 367 (Laycraft CJA, Belzil and Stratton JJA).

For recent Canadian cases on the benefit–burden rule, see Re Collège d’Arts Appliqués et de Technologie La Cité Collégiale and City of Ottawa (1994) 20 OR (3rd) 541; aff’d (1998) 37 OR (3rd) 737; Agriculture Financial Services v Redmond (1999) 174 DLR (4th) 694.

It has also been held in Canada that, if a term is implied by statute into contracts, the Crown, having voluntarily entered into a contract to which the statute applies, must abide by the terms implied into the contract by the statute: Bank of Montreal v A-G (Quebec) [1979] 1 SCR 565; 96 DLR (3rd) 586. See generally on the Canadian position Colin McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1978) 10–14.

Whether something constitutes a benefit (or a benefit linked with a burden) for these purposes is in all countries a matter for the courts. It would be interesting to speculate whether, and if so to what extent, the presumption is being reformed in Canada by declaring all sorts of things to be benefits linked with burdens under this rule. Here it is sufficient to note that the Canadian courts can be more restrictive in their approach to the presumption — in the non-federal context. Cf McNairn, above n 4, 22; Peter Hogg, Liability of the Crown (2nd ed, 1989) 214–19.

The benefit–burden rule is also applied in the US: Dollar Savings Bank v US, 86 US [1873] USSC 49; (19 Wall) 227, 239 (1874); Stanley v Schwalby, [1893] USSC 44; 147 US 508, 515 (1893).

[5] See the distinction drawn by Hayne J in Commonwealth v Western Australia (1999) 196 CLR 392, 473.

[6] This applies also to the government of the Northern Territory (Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, 215 (Bowen CJ, Morling and Beaumont JJ)) and, no doubt, of the Australian Capital Territory as well: cf the similarity between s 5 of the Northern Territory (Self-Government) Act 1978 (Cth) and s 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth). See also s 51 of the NT Act for a mention of the presumption; the equivalent of this section for the ACT may be found in s 7 of the ACT Self-Government (Consequential Provisions) Act 1988 (Cth) (which has now been repealed, presumably because the necessary amendments have been made to each affected Act on an individual basis by the ACT Self-Government (Consequential Provisions) Regulations 1989 (Cth)).

For brevity, in this article ‘the States’ includes both Territorial governments.

The governments of some or all of the external territories (eg Norfolk Island) may also constitute separate rights of the Crown (cf Fairthorn v Territory of Papua (1938) 60 CLR 772; Crimes Act 1914 (Cth) s 85ZQ; Office of Parliamentary Counsel (Cth), Drafting Instruction No 1 of 1989: ACT Self-Government (1989)), but it is not necessary to pursue that issue here.

[7] The Privy Council has expressly held that the provincial governments in Canada represent the Crown: Liquidators of the Maritime Bank of Canada v Receiver-General (New Brunswick) [1892] UKLawRpAC 31; [1892] AC 437 (‘Maritime Bank’). In Australia, it has simply been assumed that State governments represent the Crown; this is no doubt because the Privy Council’s views in Maritime Bank apply a fortiori to State governments. The States enjoy (at least formally) a slightly more autonomous position and a considerably more direct relationship with the Crown than the Canadian provinces. Australian State Governors, for example, are appointed directly by the Queen, whereas provincial Lieutenant-Governors in Canada are appointed by the Governor-General. For a judicial statement of the obvious, viz, that the State governments do represent the Crown, see Commonwealth v Mewett (1997) 191 CLR 471, 498 (Dawson J). Kirby J, however, may think that this question is still open: Bass [1999] HCA 9; (1999) 73 ALJR 522, 544. On the meaning of ‘the Crown’ in this context, see Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 671–5 (Gleeson CJ, Gummow and Hayne JJ).

[8] [1947] HCA 26; (1947) 74 CLR 31.

[9] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170, 179 (Knox CJ); Johnson v Lavender [1952] SASR 267, 270ff (Reed J); Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229, 259 (Fullagar J). Cf the course adopted by the High Court of Australia in Commissioner of Railways (Qld) v Peters (1991) 24 NSWLR 407, described by Kirby P at 412. Of course, if a statute is pro tanto invalid, there is no need to consider whether it binds the Crown in any right: Board of Trustees of the Lethbridge Northern Irrigation District v Independent Order of Foresters; A-G (Canada), Intervener [1940] AC 513, 535, adopting Independent Order of Foresters v The King [1939] 2 DLR 53, 56 (Shepherd J).

[10] Cf Federated Municipal and Shire Council Employees’ Union of Australia v Melbourne Corporation [1919] HCA 73; (1919) 26 CLR 508, 532 (Isaacs and Rich JJ).

[11] (1999) 196 CLR 392.

[12] For reasons of space, the applicability of the presumption in Northern Ireland until the abolition of the Parliament of Northern Ireland in 1972 is not considered here, but see Greg Taylor, ‘Devolution and the Applicability of Statutes to the Crown in the Inter-Governmental Context’ [2000] Public Law 7. Nor is the law of South Africa: see Union Government v Tonkin [1918] SALR 533; R v de Beer [1929] TPD 104; South African Railways and Harbours v Smith’s Coasters Pty Ltd [1931] SALR 113; R v Thomas [1954] 1 SALR 185; Administrator of the Cape Province v Raats Röntgen & Vermeulen Pty Ltd [1992] 1 SALR 245. For a case from the former Federation of Rhodesia and Nyasaland, see A-G (Southern Rhodesia) v Jones [1962] R&N 187. No settled doctrine on the applicability of the presumption in intergovernmental cases was worked out in India before the presumption was abolished in federal and non-federal cases by judicial decision: see Superintendent and Remembrancer of Legal Affairs, West Bengal v Corporation of Calcutta [1967] AIR (SC) 997, 1007.

[13] [1990] HCA 24; (1990) 171 CLR 1 (‘Bropho’).

[14] For a recent treatment of this question, see Susan Kneebone, Tort Liability of Public Authorities (1998) 291–5.

[15] See, eg, Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362; Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254; Commissioner of Railways (Qld) v Peters (1991) 24 NSWLR 407, 430–6 (Kirby P), 442ff (Priestley JA); Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 448 (Dawson, Toohey and Gaudron JJ), 460ff (McHugh J), 474ff (Gummow J), 509–12 (Kirby J); Commonwealth v Western Australia (1999) 196 CLR 392, 413–14 (Gleeson CJ and Gaudron J), 438–9 (Gummow J), 475–6 (Hayne J); Bass [1999] HCA 9; (1999) 73 ALJR 522, 529ff (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

In relation to Canada, see R v Breton [1967] SCR 503; 65 DLR (2nd) 76; R v City of Montreal (1972) 27 DLR (3rd) 349, 354 (Pratte J); Canadian Industrial Gas & Oil Ltd v Government of Saskatchewan [1979] 1 SCR 37; 91 DLR (3rd) 555; Pacific Western Airlines Ltd v The Queen in Right of Canada (1979) 105 DLR (3rd) 44; Brophy v A-G (Nova Scotia) (1985) 68 NSR (2nd) 158; Olympia Interiors Ltd v Minister of National Revenue (Canada) (1993) 66 FTR 81; Al’s Steak House and Tavern Inc v Deloitte & Touche (1994) 20 OR (3rd) 673; aff’d (1997) 13 CPC (4th) 90, 103 (Rosenberg JA); Imperial Cabinet (1980) Co Ltd v The Queen in Right of Canada [1995] 1 FC 260; Taiyo Gyogyo KK v The Tuo Hai [1995] 1 FC 407, 416–18 (Reed J).

[16] See Acts Interpretation Act 1915 (SA) s 20; Interpretation Act 1967 (ACT) s 7; the statutes and cases on them, cited below n 51; and see the Canadian statutes cited in Federal Business Development Bank v Hillcrest Motor Inn (1988) 51 DLR (4th) 464; Re Collège d’Arts Appliqués et de Technologie La Cité Collégiale and City of Ottawa (1994) 20 OR (3rd) 541; aff’d (1998) 37 OR (3rd) 737.

[17] Entick v Carrington (1765) 2 Wils 275; [1765] EWHC J98; 95 ER 807; Clough v Leahy [1904] HCA 38; (1904) 2 CLR 139, 155ff (Griffith CJ); Eastern Trust Co v McKenzie, Mann & Co Ltd [1915] AC 750, 759 (Sir George Farwell); A v Hayden [No 2] [1984] HCA 67; (1984) 156 CLR 532, 540 (Gibbs CJ dissenting), 550 (Mason J), 562 (Murphy J), 580–2 and 588ff (Brennan J), 592ff (Deane J); Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 427ff (Brennan CJ), 443–5 (Dawson, Toohey and Gaudron JJ), 452ff (McHugh J), 507 (Kirby J).

Moreover, the Crown has no power to dispense itself (or its servants) from compliance with such statutes as rebut the presumption and accordingly apply to the Crown; nor can it release anyone else from compliance with a statute of any sort: see arts 1 and 2 of the Bill of Rights 1688 (Eng) 1 Wm & M, c 2; A v Hayden [No 2] [1984] HCA 67; (1984) 156 CLR 532, 580ff (Brennan J); Yip Chiu-Cheung v The Queen [1994] UKPC 2; [1995] 1 AC 111, 118 (Griffiths LJ); Ridgeway v The Queen (1995) 184 CLR 19, 29ff (Mason CJ, Deane and Dawson JJ), 54 (Brennan J), 59 (Toohey J), 73 (Gaudron J), 81 (McHugh J dissenting). This does not mean, however, that the common law may not include a special rule applicable only to the Crown, eg, the former royal prerogative of priority in the payment of debts.

[18] Hogg, Liability of the Crown, above n 4, 202, 242ff; McNairn, above n 4, 22; S D Hotop, Principles of Australian Administrative Law (6th ed, 1985) 439–40; H Street, ‘The Effect of Statutes upon the Rights and Liabilities of the Crown’ (1948) 7 University of Toronto Law Journal 357, 384; Mark Aronson and Harry Whitmore, Public Torts and Contracts (1982) 20.

[19] R v Eldorado Nuclear Ltd [1983] 2 SCR 551, 558; 4 DLR (4th) 193, 200 (Laskin CJC, Ritchie, Dickson, Beetz and Chouinard JJ); US v Dalm[1990] USSC 71; , 494 US 596, 622 (1990) (Brennan, Stevens and Marshall JJ); State Government Insurance Corporation v Government Insurance Office of NSW [1991] FCA 198; (1991) 28 FCR 511, 558 (French J).

[20] Steven Churches, An Historical Survey of the Presumption in the Common Law that General Statutes Do Not Bind the Crown (PhD thesis, University of Adelaide, 1988).

[21] The outstanding exceptions are Leslie Katz, ‘The Test for Determining the Applicability to the States of Federal Statutes Which Do Not Expressly Bind Them’ (1994) 11 Australian Bar Review 222, 225–7; ‘Clear Statement Rules, Federalism and Congressional Regulation of States’ (1994) 107 Harvard Law Review 1959. See also Taylor, above n 11.

[22] For the sake of completeness, it should be mentioned that the presumption can also be applied horizontally, ie, when the statute concerned is a State statute and the government claiming exemption is another State government. For cases considering this, see Re Commonwealth Agricultural Service Engineers [1928] SAStRp 52; [1928] SASR 342; Public Curator of Qld v Morris (1951) 51 SR (NSW) 402; Re Caisse de Dépôt et Placement du Québec and Ontario Securities Commission (1983) 149 DLR (3rd) 456; Commissioner of Railways (Qld) v Peters (1991) 24 NSWLR 407.

[23] [1971] HCA 16; (1971) 122 CLR 353 (‘Payroll Tax Case’).

[24] Ibid 379. Of course, the Crown, in the form of the State Governor, is also party to State laws, which could suggest that the constitutional extent to which the States can bind the Commonwealth would not differ from the extent to which the Commonwealth can bind the States. But in the first place, this is, as is well known, not so; in the second place, this raises questions of a constitutional nature which are outside the scope of this article.

[25] S C Churches, ‘Statutes and the Crown’ (1980) 54 Australian Law Journal 362, 363.

[26] For a similar argument in relation to Canada, see Peter Hogg, Constitutional Law of Canada (2nd ed, 1985) 287–8.

[27] At least as a matter of law. It has been suggested that the legislature may not monitor court decisions to determine when a statute needs amendment, in order to take account of new developments by the insertion of a provision rebutting the presumption: ‘Intent, Clear Statements, and the Common Law: Statutory Interpretation in the Supreme Court’ (1982) 95 Harvard Law Review 892, 905ff. See also William Eskridge and Philip Frickey, ‘Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking’ (1992) 45 Vanderbilt Law Review 593, 639. However, the legislature clearly does do so, at least in Australia, in cases of sufficient importance, as the example of the Trade Practices Act 1974 (Cth) shows: see below nn 138–158 and accompanying text.

[28] Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 232ff (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[29] See Trade Practices Act 1974 (Cth) s 2C(1)(a).

[30] Thus, the criticism of Martha Field, ‘The Eleventh Amendment and Other Sovereign Immunity Doctrines: Congressional Imposition of Suit upon the States’ (Pt 2) (1978) 126 University of Pennsylvania Law Review 1203, 1273ff, is misconceived.

[31] Cf Quern v Jordan, [1979] USSC 40; 440 US 332, 343 (1979).

[32] Bradken Consolidated v BHP Co Ltd [1979] HCA 15; (1979) 145 CLR 107 (‘Bradken’); Bass [1999] HCA 9; (1999) 73 ALJR 522, 526–8 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 542 (Kirby J).

[33] The outcome of the negotiations is summarised in a booklet produced by the Commonwealth Treasury, National Competition Policy: Draft Legislative Package (1994), and effect was given thereto by ss 2B, 2C and 44E of the Trade Practices Act 1974 (Cth).

[34] ‘Intent, Clear Statements, and the Common Law’, above n 27, 899ff; ‘Clear Statement Rules’, above n 21, 1959–60.

[35] Eskridge and Frickey, above n 27; D C Pearce, Statutory Interpretation in Australia (4th ed, 1996) ch 5.

[36] Eskridge and Frickey, above n 27, 643ff. A ‘clear statement’ argument was expressly rejected by Gaudron J in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 679–81 (although apparently accepted by McHugh J at 719 and Kirby J (dissenting) at 719ff), but it is very doubtful whether the principle that Parliament, as distinct from an independent court, should determine its own composition is so desirable that it will support a ‘clear statement’ rule. For a context in which Parliament is the appropriate repository of a power and thus a ‘clear statement’ rule is appropriate, see A-G v Wiltshire United Dairies Ltd (1921) 37 TLR 884, 886 (Atkin LJ).

[37] See, eg, Dominion Building Corp Ltd v The King [1933] AC 533, which was really a disagreement about the applicability of the presumption on the facts and the law (despite Hogg, Liability of the Crown, above n 4, 240; and see McNairn, above n 4, 98–105), not its effect in federal systems: The Queen in Right of Alberta v Canadian Transport Commission [1978] 1 SCR 61, 71; 75 DLR (3rd) 257, 264–5 (Laskin CJC, Martland, Judson, Ritchie, Pigeon, Dickson and Beetz JJ) (‘Canadian Transport Commission’). On the facts, the Court in Dominion Building Corp Ltd v The King was doubtless motivated by a desire not to have to revive many old rules just for cases involving the Crown. Cf Dobson v Tulloch (1994) 17 OR (3rd) 533, 545 (Pardu J); The Queen in Right of Ontario v Board of Transport Commissioners [1968] SCR 118; 65 DLR (2nd) 425; Bank of Nova Scotia v The Queen (1961) 27 DLR (2nd) 120, 151–5 (Thorson P); Re Farm Credit Corp and Dunwoody; A-G (Alberta), Intervener (1988) 51 DLR (4th) 501, 508 (Laycraft CJA, McClung, Harradence, Belzil, Stevenson, Foisy and Irving JJA).

[38] In addition to the cases cited in the text, see Cushing v Dupuy (1880) 5 App Cas 409; A-G (Canada) v The City of Montreal (1885) 13 SCR 352; R v Berriman (1883) 4 OR 282; Ryder v The King (1905) 36 SCR 462; R v L’Heureux (1913) 14 DLR 604; Hamilton v The King (1916) 54 SCR 331; Gauthier v The King (1918) 56 SCR 176; 40 DLR 353; Montreal Trust v The King [1924] 1 DLR 1030; Martinello & Co v McCormick (1919) 54 SCR 394; 50 DLR 799; Re Cardston UFA Co-operative Association; Ex parte The King [1925] 4 DLR 897; A-G (Quebec) v Nipissing Central Railway Co [1926] AC 715; Re Silver Brothers; A-G (Quebec) v A-G (Canada) [1932] AC 514; R v Rhodes [1934] 1 DLR 251; Reid v Canadian Farm Loan Board [1937] 4 DLR 248; R v Star Kosher Sausage Manufacturing Co [1940] 4 DLR 365; Majestic Mines v A-G (Alberta) [1942] SCR 402; 4 DLR 593; A-G (Canada) ex rel Sanford v The King [1939] 1 DLR 374; A-G (Alberta) v Royal Trust [1944] SCR 243; 3 DLR 145; R v Verdun [1945] 2 DLR 429; R v Richardson [1948] SCR 57; 2 DLR 305; Crowther v A-G (Canada) (1959) 17 DLR (2nd) 437; Palmer v The King [1952] 1 DLR 259; Re Mendelsohn; Mendelsohn v Mendelsohn (1960) 22 DLR (2nd) 748; rev’d Re Mendelsohn (1960) 25 DLR (2nd) 778; The City of Ottawa v Shore & Horwitz Construction Co (1960) 22 DLR (2nd) 247; R v Hamilton (1962) 37 DLR (2nd) 545; Nickel Rim Mines Ltd v A-G (Ontario) [1967] SCR 672; 63 DLR (2nd) 668; Re Ombudsman for Saskatchewan (1974) 46 DLR (3rd) 452; R v Flintkote Company of Canada Ltd [1976] 1 FC 249; Dobson v Tulloch (1994) 17 OR (3rd) 533; Syndicat Professionnel des Ingénieurs d’Hydro-Québec v Hydro-Quebec [1995] 3 FC 3; Markey v Revenue Canada (Taxation) [1997] 3 WWR 309; and the cases cited below at n 53.

[39] [1978] 1 SCR 61; 75 DLR (3rd) 257.

[40] For the first such mention of the presumption in a statute, see Statute of Westminster the First 1275 (Eng) 3 Edw 1, c 50. Cf F A R Bennion, Statutory Interpretation: Codified, with a Critical Commentary (1984) 100.

[41] Canadian Transport Commission [1978] 1 SCR 61, 83; 75 DLR (3rd) 257, 273.

[42] The report is somewhat baffling on this point. It tells us that the puisne judges mentioned agreed with Laskin CJC, but then it tells us that Martland, Judson, Ritchie, Dickson, Beetz and de Grandpré JJ ‘also concurred in the judgment of Spence J’, who found it ‘unnecessary and unwise’ to consider the presumption: ibid 77, 83; 268, 273. This would mean that Martland, Judson, Ritchie, Dickson and Beetz JJ concurred in both judgments, which would mean that they both considered the presumption and thought that it was ‘unwise’ to do so. Presumably, however, the five justices just mentioned concurred only in the decision of Spence J that the regulations involved did not apply to the facts in this case as a matter of statutory construction, and concurred also in Laskin CJC’s views that, even if the regulations did apply to the facts here, Alberta could have relied on the presumption to exempt itself from them. Thus, I do not agree with the Alberta Court of Appeal’s view (Re Farm Credit and Dunwoody; A-G (Alberta), Intervenor (1988) 51 DLR (4th) 501, 506ff (Laycraft CJA, McClung, Harradence, Belzil, Stevenson, Foisy and Irving JJA)) that the authority of Laskin CJC’s judgment is weakened by this circumstance.

In any event, it was made unequivocally clear in Alberta Government Telephones v Canadian Radio-Television and Telecommunications Commission [1989] 2 SCR 225; 61 DLR (4th) 193 that the Alberta Court of Appeal’s doubts were unfounded: at 272ff; 227ff (Dickson CJC; McIntyre, Lamer, La Forest and L’Heureux-Dubé JJ concurring).

[43] Canadian Transport Commission [1978] 1 SCR 61, 68; 75 DLR (3rd) 257, 262–3.

[44] Ibid 76; 268.

[45] Ibid. The same position was taken by Addy J in the Federal Court of Canada in Lubicon Lake Band v The Queen in Right of Canada (1980) 117 DLR (3rd) 247, 252 (federal Act does not bind province: ‘the common law rule under which that immunity from general enactment is maintained, applies to the Crown in right of every Province’) and by Meldrum J in Re LeBlanc and Mollins (1983) 3 DLR (4th) 339, 341 (The New Brunswick Interpretation Act, RSNB 1973, c I-13, s 32 does not bind the federal Crown; ‘[b]oth at common law and by statute Crown immunity exists’).

[46] Canadian Transport Commission [1978] 1 SCR 61, 76; 75 DLR (3rd) 257, 268.

[47] Ibid 72; 265.

[48] Ibid 75; 267–8, following Re Silver Brothers; A-G (Quebec) v A-G (Canada) [1932] AC 514, 523.

[49] In Australia, it might, owing to Bropho [1990] HCA 24; (1990) 171 CLR 1, be necessary to omit the word ‘necessary’ and the reference to the strictness of the test from the sentence. But the principle is the same.

[50] Canadian Transport Commission [1978] 1 SCR 61, 75; 75 DLR (3rd) 257, 267–8. How best to treat this portion of the judgment was shown by Reid, Southey and Krever JJ in Re Caisse de Dépôt et Placement du Québec and Ontario Securities Commission (1983) 42 OR (2nd) 561, 565: after reproducing this part of the judgment, they effectively ignored it and concentrated on the common law (Bombay) test: Province of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58 (‘Bombay’). It also appears that Mackeigan CJNS, Macdonald and Pace JJA thought in Federal Business Development Bank v Workers’ Compensation Board of Nova Scotia (1984) 11 DLR (4th) 395, 408 that the necessary implication test had survived. But Laycraft CJA, McClung, Harradence, Belzil, Stevenson, Foisy and Irving JJA appear to have thought the opposite in Re Farm Credit and Dunwoody; A-G (Alberta), Intervener (1988) 51 DLR (4th) 501, 508; and see R v Eldorado Nuclear Ltd [1983] 2 SCR 551, 558; 4 DLR (4th) 193, 200 (Laskin CJC, Ritchie, Dickson, Beetz and Chouinard JJ). For a comprehensive list of authorities, see Hogg, Liability of the Crown, above n 4, 207.

[51] Acts Interpretation Act 1954 (Qld) s 13; Acts Interpretation Act 1931 (Tas) s 6(6). See Brisbane City Council v Group Projects [1979] HCA 54; (1979) 145 CLR 143, 167 (Wilson J); Bropho [1990] HCA 24; (1990) 171 CLR 1, 22 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Re Commissioner of Water Resources [1991] 1 Qd R 549, 551ff (Byrne J); S G G Edgar, Craies on Statute Law (7th ed, 1971) 298.

[52] Alberta Government Telephones v Canadian Radio-Television and Telecommunications Commission [1989] 2 SCR 225, 281; 61 DLR (4th) 193, 233 (Dickson CJC; McIntyre, Lamer, La Forest and L’Heureux-Dubé JJ concurring); Re Friends of the Oldman River Society and The Queen in Right of Alberta; A-G (Quebec), Intervener [1992] SCR 3, 53; 88 DLR (4th) 1, 33 (La Forest J; Lamer CJC, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ concurring), 55 (Stevenson J dissenting); Fine’s Flowers Ltd v Creditors of Fine’s Flowers Ltd (1993) 16 OR (3rd) 315, 316; Re Collège d’Arts Appliqués et de Technologie La Cité Collégiale and City of Ottawa (1994) 20 OR (3rd) 541, 546ff (Cunningham J); aff’d (1998) 37 OR (3rd) 737.

That the statutory test is the same as the common law rule was stated by Gale CJ, Evans and Arnup JJA in R v Stradiotto [1973] 2 OR 375, 378, where the origin of the heresy that the statutory test is supposed to exclude necessary implication is also explained.

[53] See the cases above nn 38 and 45, and see also Re The Queen in Right of New Brunswick and Federal Business Development Bank (1984) 8 DLR (4th) 143, 145 (La Forest and Angers JJA) (principal case not expressly mentioned, but conclusion in it treated as self-evident); Federal Business Development Bank v Workers’ Compensation Board of Nova Scotia (1984) 11 DLR (4th) 395, 407ff (Mackeigan CJNS, Macdonald and Pace JJA); Re Workers’ Compensation Board of New Brunswick and Federal Business Development Bank; A-G (New Brunswick), Intervener (1985) 21 DLR (4th) 379, 385 (Stratton CJ, Ryan and Angers JJA); Re First Investors Corp [No 2] (1987) 46 DLR (4th) 687, 691 (Berger J); Société des Alcools du Québec v Steinberg Inc (1992) 98 DLR (4th) 212, 217 (Bisson CJ, Tyndale and Delisle JJA); Fine’s Flowers Ltd v Creditors of Fine’s Flowers Ltd (1993) 16 OR (3rd) 315, 317 (decisions on the presumption’s effect on a statute in non-federal contexts followed in relation to the same statute — but here in a federal context — without comment or distinction).

[54] See, eg, Gauthier v The King (1918) 56 SCR 176; 40 DLR 353; Montreal Trust v The King [1924] 1 DLR 1030; Re Cardston UFA Co-operative Association; Ex parte the King [1925] 4 DLR 897; A-G (Quebec) v Nipissing Central Railway Co [1926] AC 715; Re Silver Brothers; A-G (Quebec) v A-G (Canada) [1932] AC 514; R v Star Kosher Sausage Manufacturing Co [1940] 4 DLR 365; A-G (Alberta) v Royal Trust [1944] SCR 243; 3 DLR 145; Palmer v The King [1952] 1 DLR 259; Re Mendelsohn; Mendelsohn v Mendelsohn (1959) 22 DLR (2nd) 748; (1960) 25 DLR (2nd) 778; R v Murray [1967] SCR 262, 270; 60 DLR (2nd) 647, 654 (Taschereau CJ, Fauteux, Martland, Judson and Spence JJ); Nickel Rim Mines v A-G (Ontario) [1967] SCR 672; 63 DLR 668; Re Ombudsman for Saskatchewan (1974) 46 DLR (3rd) 452; Alberta Government Telephones v Canadian Radio-Television and Telecommunications [1989] 2 SCR 225, 272ff; 61 DLR (4th) 193, 227ff (Dickson CJC).

[55] See below n 160 and accompanying text.

[56] [1989] 2 SCR 225; 61 DLR (4th) 193.

[57] Ibid 319; 248, 259.

[58] Ibid 272ff; 227ff.

[59] See also Administrator of the Cape Province v Raats Röntgen & Vermeulen [1992] 1 SALR 245.

[60] In addition to the cases cited in the text, see US v Hoar, 26 Fed Cas 329 (Mass Cir Ct, 1821); Gibson v Chouteau, 80 US [1871] USSC 52; (13 Wall) 92 (1872); US v Thompson[1878] USSC 191; , 98 US 486 (1879); New York v Irving Trust Co[1933] USSC 40; , 288 US 329 (1933); Re Smathers’ Will, 293 NYS 314 (1937).

[61] 223 F 926 (3rd Cir, 1915).

[62] Ibid 928 (emphasis added). For a similar statement, see Re J Menist Co, 294 F 532, 533 (2nd Cir, 1923).

[63] Chesapeake & Delaware Canal v US, 223 F 926, 928 (3rd Cir, 1915). See also Redfield v Parks[1889] USSC 199; , 132 US 239 (1889).

[64] 47 F 2d 514 (9th Cir, 1931).

[65] Ibid 516 (Wilbur J, Norcross J concurring) (citations omitted).

[66] See, eg, Metcalf v Mitchell[1926] USSC 17; , 269 US 514, 521 [1926] USSC 17; (1926); 70 L Ed 384, 391 (Stone J); Gregory v Ashcroft[1991] USSC 108; , 501 US 452, 457ff [1991] USSC 108; (1991); 115 L Ed 2d 410, 421ff; Printz v US[1997] USSC 77; , 521 US 898, 919 [1997] USSC 77; (1997); 138 L Ed 2d 914, 934; Alden v Maine, [1999] USSC 62; 144 L Ed 2d 636, 652ff, 672ff (1999).

Although the doctrine developed almost by accident and there are good reasons for discarding it, Indian tribes enjoy a form of sovereign immunity under US law: Kiowa Tribe of Oklahoma v Manufacturing Technologies[1998] USSC 54; , 523 US 751 (1998).

[67] 17 US [1819] USSC 5; (4 Wheat) 316 (1819).

[68] Sands, Statutes and Statutory Construction (4th ed, 1974) vol 3, 64. For the commentary of the Corpus Juris Secundum on the presumption in federal cases, see 82 CJS s 317.

[69] 213 F 676 (DC Md, 1914).

[70] Ibid 680.

[71] 87 US [1873] USSC 185; (20 Wall) 251 (1874).

[72] Ibid 263.

[73] For a definition and discussion of republican theory, see, eg, Andrew Fraser, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (1990); Philip Pettit, ‘Republican Themes’ (1992) 6(2) Legislative Studies 29; Philip Pettit, Republicanism: A Theory of Freedom and Government (1997). This, however, may nowadays be applicable to some extent in Australia. See Australian Capital Television v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1, 71ff (Deane and Toohey JJ); Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579, 634, 643 (Kirby J).

[74] 75 F 2d 41 (9th Cir, 1935).

[75] Ibid 44.

[76] 45 USC ss 1–16 (1986).

[77] 26 Fed Cas 329 (Mass Cir Ct, 1821).

[78] California v US, 75 F 2d 41, 44 (9th Cir, 1935).

[79] US v California[1936] USSC 28; , 297 US 175 (1936).

[80] For a case discussing this issue, see Coan v California, 520 P 2d 1003, 1008 (1974) (Clark J; Wright CJ, McComb, Burke and Mosk JJ concurring).

[81] US v California, [1936] USSC 28; 297 US 175, 186 (1936).

[82] Ibid.

[83] [1976] USSC 103; 426 US 167 (1976).

[84] Ibid 179 (White J quoting US v United Mine Workers[1947] USSC 40; , 330 US 258, 272 (1947)).

[85] 520 P 2d 1003 (1974).

[86] Coan v California, 520 P 2d 1003, 1007 (1974) (Clark J; Wright CJ, McComb, Burke and Moss JJ concurring).

[87] Ibid 1008 (Clark J).

[88] 473 US 234 (1985).

[89] See below nn 99–10000 for the distinction between the presumption and ‘clear statement’ rules under American law.

[90] Thus, it is not an old-fashioned, pre-Engineers style ‘reserved powers’ doctrine: see Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129. Congress, if it possesses sufficient constitutional power, need only make its intention to trespass on the States’ traditional areas clear. It is not prohibited altogether from so doing.

[91] [1971] USSC 192; 404 US 336 (1971).

[92] Ibid 339.

[93] Printz v US[1997] USSC 77; , 521 US 898 (1997).

[94] Atascadero State Hospital v Scanlon, 473 US 234, 242–3 (1985); Dellmuth v Muth[1989] USSC 114; , 491 US 223, 227–32 (1989).

[95] Constitution of the United States of America art VI cl 2 (‘US Constitution’); Gregory v Ashcroft[1991] USSC 108; , 501 US 452, 460ff, 467 (1991).

[96] ‘Clear Statement Rules’, above n 21, 1962, 1968; Eskridge and Frickey, above n 27, 623–5; Field, ‘The Eleventh Amendment’ (Pt 2), above n 30, 1240ff, 1250.

[97] Garcia v San Antonio Metropolitan Transit Authority[1985] USSC 86; , 469 US 528 (1985), rejecting National League of Cities v Usery[1976] USSC 136; , 426 US 833 (1976).

[98] Dellmuth v Muth[1989] USSC 114; , 491 US 223, 228 (1989).

[99] For an example of a sufficiently clear statement of intention, see Seminole Tribe of Florida v Florida[1996] USSC 28; , 517 US 44, 55ff (1996).

[100] Dellmuth v Muth[1989] USSC 114; , 491 US 223, 230 (1989).

[101] Hilton v South Carolina Public Railways Commission[1991] USSC 155; , 502 US 197, 204 (1991). This compulsion to ignore legislative history apparently distinguishes a presumption from a ‘clear statement’ rule in American law: Eskridge and Frickey, above n 27, 637ff; cf Field, ‘The Eleventh Amendment’ (Pt 2), above n 30, 1272ff. In Australia, this factor goes simply to the strength of the presumption, a topic that will be considered in detail below.

[102] Eskridge and Frickey, above n 27, 596ff, 619, 621.

[103] See Hilton v South Carolina Public Railways Commission[1991] USSC 155; , 502 US 197, 204ff (1991); Seminole Tribe of Florida v Florida[1996] USSC 28; , 517 US 44, 58–62, 76ff (1996) (Stevens J dissenting); Alden v Maine, [1999] USSC 62; 144 L Ed 2d 636, 667ff (1999); Eskridge and Frickey, above n 27, 622, 638ff; Field, ‘The Eleventh Amendment’ (Pt 2), above n 30, 1245–7. This being the case, it may be questioned whether the decision in Nevada v Hall[1979] USSC 61; , 440 US 410 (1979) on the immunity of one State in the courts of another is still good law.

[104] ‘The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.’ For recent cases on the extent of this provision, see Seminole Tribe of Florida v Florida[1996] USSC 28; , 517 US 44, 55–76 (1996). See Martha Field, ‘The Eleventh Amendment and Other Sovereign Immunity Doctrines’ (Pt 1) (1977) 126 University of Pennsylvania Law Review 515, 517ff; and, for a comprehensive annotation, John Wagner, ‘Annotation: Supreme Court’s Construction of Eleventh Amendment, Restricting Judicial Power over Suits against States’, 106 L Ed 2d 660 (1991).

[105] See Atascadero State Hospital v Scanlon, 473 US 234, 242 (1985) and the cases there cited; Welch v Texas Department of Highways and Public Transportation, [1987] USSC 147; 483 US 468 (1987); Seminole Tribe of Florida v Florida[1996] USSC 28; , 517 US 44, 56 (1996).

[106] Hilton v South Carolina Public Railways Commission[1991] USSC 155; , 502 US 197, 206 (1991).

[107] ‘Clear Statement Rules’, above n 21, 1975.

[108] [1989] USSC 118; 491 US 58 (1989) (‘Will’).

[109] 42 USC s 1983 (1986).

[110] For a discussion of earlier cases on this provision, see Quern v Jordan[1979] USSC 40; , 440 US 332, 340–6 (1979).

[111] 16 Stat 431 (1871).

[112] [1999] HCA 9; (1999) 73 ALJR 522.

[113] Will[1989] USSC 118; , 491 US 58, 64 (1989).

[114] Ibid.

[115] See also International Primate Protection League v Administrators of Tulane Educational Fund, [1991] USSC 69; 500 US 72, 82–4 (1991).

One amusing instance in which the ‘person’ rule was applied was Wilson v Omaha Indian Tribe, [1979] USSC 132; 442 US 653 (1979), in which the Court solemnly considered whether the words ‘white person’ included the States. It was held that they did not: at 667–8. For the same issue in relation to non-sovereign Territories of the US, see Ngiraingas v Sanchez, [1990] USSC 60; 495 US 182 (1990), a case in which Brennan J also dissented. For a decision on this point in which Brennan J was in the majority, see Owen v City of Independence, [1980] USSC 99; 445 US 622, 647–50 (1980). State officials sued in a personal capacity cannot, of course, claim that they are not ‘persons’: Hafer v Melo, [1991] USSC 142; 502 US 21 (1991).

[116] Will[1989] USSC 118; , 491 US 58, 69 (1989). On which see Owen v City of Independence[1980] USSC 99; , 445 US 622 (1980).

[117] Will[1989] USSC 118; , 491 US 58, 69 (1989).

[118] See Hancock v Train, [1976] USSC 103; 426 US 167 (1976).

[119] [1936] USSC 28; 297 US 175 (1936).

[120] Will[1989] USSC 118; , 491 US 58, 73 (1989).

[121] [1976] USSC 103; 426 US 167 (1976). For a discussion of the case, see above nn 83–84 and accompanying text.

[122] US Constitution art VI cl 2. This is, roughly speaking, the American equivalent of s 109 of the Australian Constitution.

[123] [1936] USSC 28; 297 US 175 (1936).

[124] See below nn 242–247 and accompanying text.

[125] See below nn 126, 132.

[126] ‘[I]t is difficult to see why ... trading functions are not governmental, if they are undertaken by government in the public interest’: Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 230 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). This attitude had been taken earlier in Superintendent and Remembrancer of Legal Affairs, West Bengal v Corporation of Calcutta [1967] 54 AIR (SC) 997, 1014 (Shah J dissenting).

[127] State Immunity Act 1978 (UK) ss 3, 10; The Philippine Admiral [1977] AC 373; Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529; The I Congreso del Partido [1983] 1 AC 244. Cf Foreign States Immunities Act 1985 (Cth) ss 11, 18.

[128] Roberts v Hopwood [1925] AC 578, 594 (Lord Atkinson).

[129] ‘Clear Statement Rules’, above n 21, 1972–3.

[130] [1991] USSC 155; 502 US 197 (1991). See also College Savings Bank v Florida Pre-Paid Post-Secondary Education Expense Board, [1997] USCA3 1123; 144 L Ed 2d 605, 621ff (1999).

[131] See, eg, Helvering v Powers[1934] USSC 166; , 293 US 214 (1934).

[132] [1946] USSC 13; 326 US 572, 580–4 (1946). For a handy summary of the development of the Court’s doctrine in the area of state immunity from federal taxation, see South Carolina v Baker[1988] USSC 113; , 485 US 505, fn 14 (1988).

[133] [1990] HCA 24; (1990) 171 CLR 1.

[134] [1979] HCA 15; (1979) 145 CLR 107.

[135] Australian authorities on this topic before Bradken include Sydney Corporation v Commonwealth [1904] HCA 50; (1904) 1 CLR 208; Roberts v Ahern [1904] HCA 17; (1904) 1 CLR 406; Commonwealth v New South Wales [1906] HCA 16; (1906) 3 CLR 807; R v Sutton [1908] HCA 26; (1908) 5 CLR 789 (‘Wire Netting Case’); A-G (NSW) v Collector of Customs for NSW [1908] HCA 28; (1908) 5 CLR 818; aff’d [1909] UKLawRpAC 11; [1909] AC 345; R v Registrar of Titles for Vic; Ex parte the Commonwealth [1915] HCA 59; (1915) 20 CLR 379; Commonwealth v New South Wales [1918] HCA 44; (1918) 25 CLR 325; Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170; Re Commonwealth Agricultural Service Engineers [1928] SAStRp 52; [1928] SASR 342; Re Keep McPherson Ltd (1931) 48 WN (NSW) 180; Washington v Commonwealth [1939] NSWStRp 16; (1939) 39 SR (NSW) 133; Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (in liq) [1940] HCA 13; (1940) 63 CLR 278, 292 (Rich J), 296 (Starke J), 326 (Evatt J); Minister of Works for WA v Gulson (1944) 69 CLR 339; Criterion Theatres Ltd v Melbourne & Metropolitan Board of Works [1945] VicLawRp 18; [1945] VLR 267; Essendon Corporation v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508; Public Curator of Qld v Morris (1951) 51 SR (NSW) 402; Marshall v Commonwealth Hostels Ltd [1952] VicLawRp 77; [1953] VLR 503; Johnson v Lavender [1952] SASR 267; Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229; Commonwealth v Rhind [1966] HCA 83; (1966) 119 CLR 584; Re Young’s Horsham Garage Pty Ltd (in liq) [1969] VicRp 118; [1969] VR 977; A-G (UK) v Sorati [1969] VicRp 11; [1969] VR 88; R v Kinal [1978] TASStRp 8; [1978] Tas SR 91.

[136] [1979] HCA 15; (1979) 145 CLR 107.

[137] Ibid 116 (Gibbs ACJ).

[138] Strictly speaking, expressions like ‘Commonwealth Crown’ and ‘State Crown’ should be avoided. As explained below n 152 and accompanying text, there is only one Australian Crown. However, it would be tedious to have to repeat ‘the Crown in right of the Commonwealth/the State’, and therefore accuracy is sacrificed to brevity. It is, at any rate, arguable that even the longer expressions fall short of complete accuracy: see State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 291 (McHugh and Gummow JJ); Commonwealth v Mewett (1997) 191 CLR 471, 498 (Dawson J); Commonwealth v Western Australia (1999) 196 CLR 392, 431 (Gummow J); Bass [1999] HCA 9; (1999) 73 ALJR 522, 527 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[139] This terminology is also adopted by Hogg, Liability of the Crown, above n 44, 239.

[140] Bradken [1979] HCA 15; (1979) 145 CLR 107, 121.

[141] See ibid 122; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410, 505ff (Kirby J).

[142] Bradken [1979] HCA 15; (1979) 145 CLR 107, 122.

[143] Ibid.

[144] Ibid 122ff.

[145] Ibid 123.

[146] Ibid.

[147] Ibid.

[148] Ibid 128–9.

[149] Ibid 129.

[150] This anticipated judgments such as those of Deane and Gaudron JJ in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41; McKain v RW Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1 and Stevens v Head [1993] HCA 19; (1993) 176 CLR 433; see below n 240.

[151] Bradken [1979] HCA 15; (1979) 145 CLR 107, 136.

[152] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 314. And see George Winterton, ‘The Constitutional Position of Australian State Governors’ in H P Lee and George Winterton (eds), Australian Constitutional Perspectives (1992) 274; W C Cuppaidge, ‘The Divisibility of the Crown’ (1954) 27 Australian Law Journal 594.

[153] Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 73 ALJR 839, 879 (Kirby J dissenting).

[154] State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 289ff (McHugh and Gummow JJ); Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 673ff (Gleeson CJ, Gummow and Hayne JJ), 693 (Gaudron J).

[155] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 563–4 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ); Lipohar v The Queen [1999] HCA 65; (1999) 168 ALR 8.

[156] Bradken [1979] HCA 15; (1979) 145 CLR 107, 136.

[157] Ibid 140.

[158] Ibid.

[159] See, eg, Zines, The High Court, above n 152, 10ff.

[160] A poorly disguised attempt to unsettle the law was made in State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282, but leave to challenge the correctness of Bradken was refused: 287 (Gibbs CJ during argument), 299 (Mason, Murphy and Deane JJ). The question has now, it would seem, been finally settled by Bass [1999] HCA 9; (1999) 73 ALJR 522.

[161] Sydney Corporation v Commonwealth [1904] HCA 50; (1904) 1 CLR 208; R v Registrar of Titles for Vic; Ex parte the Commonwealth [1915] HCA 59; (1915) 20 CLR 379; Washington v Commonwealth [1939] NSWStRp 16; (1939) 39 SR (NSW) 133; Criterion Theatres Ltd v Melbourne & Metropolitan Board of Works [1945] VicLawRp 18; [1945] VLR 267; Essendon Corp v Criterion Theatres Ltd [1947] HCA 15; (1947) 74 CLR 1; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508; Johnson v Lavender [1952] SASR 267; Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229; A-G (UK) v Sorati [1969] VicRp 11; [1969] VR 88; Re Young’s Horsham Garage Pty Ltd (in liq) [1969] VicRp 118; [1969] VR 977.

[162] If, for example, there is a prohibition on holding an office of profit under ‘the Crown’, and offices of profit in several rights of the Crown are included in the exceptions to the prohibition, it is logical to conclude that all other offices in those same rights are within the prohibition, ie that ‘the Crown’ includes all jurisdictions for which exceptions are created: Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77, 98 (Mason CJ, Toohey and McHugh JJ), 108 (Brennan J), 118 (Deane J dissenting), 130 (Dawson J), 132 (Gaudron J).

I do not necessarily mean to imply here that the prima facie rule applies in the interpretation of the Constitution itself. However, the method adopted in Sykes is very similar to one method adopted to determine whether the prima facie rule is displaced in ordinary statutes.

[163] [1947] HCA 45; (1947) 74 CLR 508.

[164] See, eg, Fair Trading Act 1987 (SA) s 4: ‘This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, in all its other capacities’. Cf Corporations (South Australia) Act 1990 (SA) Part IV; Water Industry Act 1994 (Vic) s 4.

Another example of a very explicit statement of the extent to which a statute is intended to bind each right of the Crown is s 6 of the Workplace Relations Act 1996 (Cth), which, as s 6 of the Industrial Relations Act 1988 (Cth), was considered in Warner v First Mildura Irrigation Trust [1993] FCA 555; (1993) 46 FCR 294. Drafters are becoming increasingly aware of the need to state specifically Parliament’s intention in every new enactment in relation to all rights of the Crown; this must be desirable, because it promotes certainty and reduces the scope for litigation.

However, Parliamentary Counsel both for South Australia and for the Commonwealth have kindly advised me that they have no drafting instructions containing a standard policy on the application of new statutes to other jurisdictions. The question is considered separately for each new statute. Office of Parliamentary Counsel (Cth), Drafting Instruction No 4 of 1979: Application of Statutes to the Crown (1979) and Office of Parliamentary Counsel (Cth), Drafting Instruction No 1 of 1989: ACT Self-Government (1989) deal only with the drafting formulae which can be used if it is decided as a matter of policy to make Commonwealth statutes applicable to the States.

[165] Superannuation Fund Investment Trust v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330, 355–7 (Mason J), 357 (Murphy J).

[166] Actually, the references were to ‘His Majesty’. It would therefore have been possible to argue that references to ‘the Crown’, being in different words, were meant to mean different things, along the lines of Criterion Theatres Ltd v Melbourne & Metropolitan Board of Works [1945] VicLawRp 18; [1945] VLR 267, a case to which Mason J did not refer. That his Honour did not so argue may indicate the weighty evidence needed to show that a specific reference to ‘the Crown’ includes Crowns other than the ‘enacting’ one.

[167] Superannuation Fund Investment Trust (Cth) v Commissioner of Stamps (SA) [1979] HCA 34; (1979) 145 CLR 330, 355ff.

[168] Ibid 356.

[169] [1986] HCA 51; (1986) 161 CLR 254.

[170] Ibid 262 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ), 268 (Brennan J dissenting).

[171] [1979] HCA 57; (1979) 145 CLR 172.

[172] For the Canadian position on this, see Gartland Steamship Co v The Queen [1960] SCR 315; 22 DLR (2nd) 385; British Columbia Telephone Co v Marpole Towing Ltd [1971] SCR 321; 17 DLR (3rd) 545.

[173] Actually, the owners of the guilty ship were also plaintiffs, as they sued South Australia to determine whether the Act applied. But the ‘real’ plaintiff was South Australia; it had suffered the damage.

[174] The State could as defendant take advantage of the Act to limit its liability: Asiatic Steam Navigation Co Ltd v Commonwealth [1956] HCA 82; (1956) 96 CLR 397. The Crown is not precluded from taking the benefit of statutes which cannot, owing to the presumption, operate to its disadvantage. See further above n 4.

[175] Except by complying with s 735 of the Act. This restriction no longer exists: see Australia Act 1986 (UK) s 4; Australia Act 1986 (Cth) s 4.

[176] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 200.

[177] Ibid 202.

[178] Nowadays, it clearly would not, as the Imperial Crown has been divided and all members of the British Commonwealth with Her Majesty as Head of State have a separate Crown. When we say that ‘the Crown’ enjoys the benefit of the presumption, this means simply the Australian Crown, not (say) the Canadian Crown. See State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 287–90 (McHugh and Gummow JJ); Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 664, 671ff (Gleeson CJ, Gummow and Hayne JJ); Leslie Zines, ‘Commentary’ in Herbert Vere Evatt (ed), The Royal Prerogative (1987) C1, C23–5.

When the Imperial Parliament could legislate for Australia, there was a presumption of statutory interpretation that it would not do so except in accordance with the convention requiring Australia’s concurrence: Copyright Owners Reproduction Society Ltd v EMI (Australia) Pty Ltd [1958] HCA 54; (1958) 100 CLR 597, 612 (Dixon CJ), 613 (McTiernan J), 615 (Taylor J).

[179] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 222.

[180] Ibid 231–9. Murphy J did not base his decision on the presumption, but instead argued that the Merchant Shipping Act 1894 (Imp) 57 & 58 Vict, c 60 did not apply at all in Australia because of its status as an Imperial Act: ibid 238–9.

[181] Ibid 240ff.

[182] Ibid 187ff.

[183] Ibid 188–91.

[184] [1990] HCA 24; (1990) 171 CLR 1.

[185] [1947] AC 58.

[186] Ibid 63 (Lord du Parcq).

[187] Ibid 61.

[188] [1990] 2 AC 580, 598 (Lord Keith of Kinkel) sub nom Lord Advocate v Strathclyde Regional Council [1988] SLT 546.

[189] Lord Advocate v Strathclyde Regional Council [1988] SLT 546.

[190] Ibid 551 (Lord Emslie).

[191] [1990] HCA 24; (1990) 171 CLR 1. However, it did not succeed in Canada, where the English rule is still followed: see Re Collège d’Arts Appliqués et de Technologie La Cité Collégiale and City of Ottawa (1994) 20 OR (3rd) 541, 547ff (Cunningham J); aff’d (1998) 37 OR (3rd) 737.

[192] Just as the presumption has been heavily criticised by commentators, Bropho was hailed as a step in the right direction: cf, eg, David Kinley, ‘Crown Immunity: A Lesson from Australia’ (1990) 53 Modern Law Review 819; Susan Kneebone, ‘The Crown’s Presumptive Immunity from Statute: New Light in Australia’ [1991] Public Law 361.

[193] Bropho [1990] HCA 24; (1990) 171 CLR 1, 16.

[194] Ibid.

[195] Ibid 19.

This statement is sometimes treated as self-evident. I have no desire to defend the presumption in non-federal cases by disputing the truth of the statement; however, there are at least two reasons for doubting whether it is true:

At the moment, both the South Australian and Commonwealth governments are selling off Crown assets at tremendous speed. It seems to me that Crown activities, particularly in the commercial/trading field, are becoming less extensive, not more so.
The stricter test in Bombay was not finally established until that case was decided just after World War II; as even a cursory examination of this area will reveal that tests of lesser strictness have enjoyed supremacy in past centuries prior to Bombay. The Crown’s activities were not much less extensive at the end of the War than they are now; why, then, is there a sudden need to introduce a less strict test than the one which was formulated at the very beginning of the welfare state’s existence? It is not as if the ‘necessary implication’ test was made up in the 15th century and had to be rejected because of an immense explosion of governmental business in the last hundred years!

[196] Bropho [1990] HCA 24; (1990) 171 CLR 1, 19.

[197] Ibid 21. It would surely be rare for Parliament to decide explicitly that it wishes to bind the Crown and then to forget to insert an appropriate clause in the Bill. It is more likely that their Honours were referring to cases in which Parliament did not consider this issue at all but would have decided to bind the Crown if it had thought about whether it desired to do so.

[198] Ibid 21ff.

[199] Ibid 22.

[200] Ibid 23. Brennan J disagreed with this: at 29. This flirtation with prospective overruling did not blossom into a full-scale romance: Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 503ff (Brennan CJ, McHugh, Gummow and Kirby JJ), 615 (Dawson, Toohey and Gaudron JJ dissenting).

[201] Bropho [1990] HCA 24; (1990) 171 CLR 1, 24.

[202] Ibid 25.

[203] Generally, the courts are extremely reluctant to hold that a statute would render the Sovereign herself or the Crown as such liable to conviction under a criminal statute. They are also reluctant, but rather less so, to hold Crown servants liable. But see Acts Interpretation Act 1915 (SA) s 20(3); see also Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409; The Canadian Broadcasting Commission v A-G (Ontario) [1959] SCR 188; Canadian Broadcasting Corporation v The Queen [1983] 1 SCR 339; 16 DLR (2nd) 609; R v Eldorado Nuclear Ltd [1983] 2 SCR 551; 4 DLR (4th) 193; Bropho [1990] HCA 24; (1990) 171 CLR 1, 21, 23 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ); State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 270 (Brennan CJ, Dawson, Toohey and Gaudron JJ); 294 (McHugh and Gummow JJ); Zines, The High Court, above n 152, 267.

[204] Bropho [1990] HCA 24; (1990) 171 CLR 1, 27.

[205] Ibid 27ff.

[206] Ibid 28.

[207] For cases from the State Supreme and Federal Courts dealing with the presumption in a federal context since Bropho [1990] HCA 24; (1990) 171 CLR 1, see Re Commissioner of Water Resources [1991] 1 Qd R 549; Trade Practices Commission v Manfal Pty Ltd [No 2] (1990) 27 FCR 22; Deputy Commissioner of Taxation v Zarzycki (1990) 96 ALR 146; Commissioner of Railways (Qld) v Peters (1991) 24 NSWLR 407; State Government Insurance Corporation (WA) v Government Insurance Office of NSW [1991] FCA 198; (1991) 28 FCR 511; Hawthorn Pty Ltd v State Bank of SA (1993) 40 FCR 137; Kinross v GIO Australia Holdings (1994) 55 FCR 210; Wenpac Pty Ltd v Allied Westralian Finance Ltd (1994) 123 FLR 1; Ling v Commonwealth [1994] FCA 1156; (1994) 51 FCR 88; Jellyn v State Bank of SA [1996] 1 Qd R 271; McMullin v ICI Australia Operations Pty Ltd (1996) 69 FCR 473; Ventana Pty Ltd v Federal Airports Corporation & Fairways Group Pty Ltd (1997) 75 FCR 400; Margarula v Minister for Resources & Energy (1998) 86 FCR 195, 204.

[208] Cf Katz, above n 21, 222; R D Lumb and G A Moens, The Constitution of the Commonwealth of Australia Annotated (5th ed, 1995) 123.

[209] Kinley, above n 192; Kneebone, above n 192; J G Starke, ‘The High Court’s New Approach to the Question Whether the Crown Is Bound by a Statute’ (1990) 64 Australian Law Journal 527.

[210] (1993) 178 CLR 145 (‘Registrar of the Accident Compensation Tribunal’). See Katz, above n 21 \* MERGEFORMAT 21.

[211] Registrar of the Accident Compensation Tribunal (1993) 178 CLR 145, 168. Brennan, Dawson and McHugh JJ (dissenting) disagreed with this finding. They took the view that the income was not trust income and therefore, under the terms of the Commonwealth statute itself, not taxable; this meant that they did not have to consider whether the presumption was applicable: at 191.

[212] Ibid 170ff.

[213] Ibid 171ff.

[214] Ibid 171.

[215] Cf Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213 (on appeal, this question was not dealt with: Bass v Permanent Trustee [1999] HCA 9; (1999) 73 ALJR 522).

[216] [1995] HCA 6; (1995) 182 CLR 572 (‘Jacobsen’). The case was an appeal from the judgment of the Full Court of the Federal Court of Australia; for its judgment, see Rogers v Moore [1993] FCA 332; (1993) 41 FCR 301. The judgment of the Full Court was itself given on appeal from Rogers v Moore [1992] FCA 602; (1992) 39 FCR 201, in which the presumption was not considered. For the ultimate outcome of the case, see Rogers v Jacobsen & Dibb [No 2] (1995) 40 ALD 179.

[217] The word used in the case was ‘fishermen’, which seems a little old-fashioned.

[218] For a case in a similar area of the law in which the presumption was not considered by the Supreme Court of Queensland because no argument on it had been addressed to the Court, see Coco v Shaw [1994] 1 Qd R 469 (especially at 477 (McPherson SPJ)) (‘Shaw’). This decision was reversed on appeal without consideration of the presumption: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427.

Jacobsen also involved the question whether ‘the police force’ in a State Act includes the Federal Police; this issue has some similarities with the question whether ‘the Crown’ in a State statute includes other State Crowns or the Commonwealth. For the answers given by their Honours in Shaw, see 476ff (McPherson SPJ); 493 (Ryan J dissenting); 503 (Dowsett J). On appeal, this issue was not discussed except by Toohey J: Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 460.

[219] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 585.

[220] Ibid 586.

[221] Ibid 587.

[222] Ibid 587ff.

[223] See above n 203.

[224] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 594ff.

[225] Cf Sir Frederick Pollock, The Expansion of the Common Law (1904) 78.

[226] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 588ff.

[227] McHugh J (dissenting) considered this point too, but greatly exaggerated the practical difficulties involved in giving effect to a claim of public interest immunity: ibid 604ff. For the ultimate outcome of the balancing process, see Rogers v Jacobsen & Dibb [No 2] (1995) 40 ALD 179.

[228] But see Lipohar v The Queen [1999] HCA 65; (1999) 168 ALR 8, 33 (s 3A rebuts the presumption against extraterritoriality).

[229] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 590–1.

[230] Ibid 590, quoting Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508, 529. See also Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 73 ALJR 839, 852 (McHugh J).

[231] See Leslie Zines, ‘Sir Owen Dixon’s Theory of Federalism’ (1965) 1 Federal Law Review 221, 235ff for a discussion of this quotation in the context of Sir Owen Dixon’s theory of federalism.

[232] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 591.

[233] Ibid 602.

[234] Ibid 601.

[235] Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 679–81 (Gaudron J).

[236] [1996] HCA 32; (1996) 189 CLR 253.

[237] On the presumption in intragovernmental taxation cases, see McKechnie v Connell [No 2] (1993) 9 WAR 162, 175ff (Nicholson J). For a much earlier case on intergovernmental taxation and the presumption, see Commonwealth v New South Wales [1906] HCA 16; (1906) 3 CLR 807.

[238] Cf the statement in the Virginia Convention quoted in Field, ‘The Eleventh Amendment’ (Pt 1), above n 104, 533.

[239] State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 269ff (Brennan CJ, Dawson, Toohey and Gaudron JJ), 288ff, 291–4 (McHugh and Gummow JJ).

[240] Cf Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 78 (Mason CJ), 87 (Wilson and Gaudron JJ), 107 (Brennan J), 135 (Deane J); McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1, 36 (Brennan, Dawson, Toohey and McHugh JJ); Stevens v Head [1993] HCA 19; (1993) 176 CLR 433, 442 (Mason CJ), 461ff (Deane J), 466 (Gaudron J).

[241] State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 289.

[242] Ibid 293.

[243] Admittedly, some legislation (such as the Public Corporations Act 1993 (SA) s 29(1)), for reasons relating to the national competition policy, does require State public corporations to pay State tax, but this could also be done by ministerial direction — see ss 6 and 22 of that Act; and note that s 29(1) permits the Treasurer to create exemptions from the duty to pay tax. There is also no reason of which I am aware why a government department without a board of directors with directors’ duties could not be compelled to pay tax by simple ministerial direction.

[244] See South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373, 423 (Latham CJ) (‘First Uniform Tax Case’); Deputy Commissioner of Taxation v State Bank of NSW [1992] HCA 6; (1992) 174 CLR 219, 229ff; Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, 230 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) and the cases there cited; Kneebone, above n 192, 366ff.

Of course, it may in some circumstances be relevant, in deciding whether Parliament intended one if its creatures to enjoy the protection of the ‘shield of the Crown’, to consider whether a function is ‘traditionally’ or ‘essentially’ governmental: cf, eg, Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust [1990] FCA 163; (1990) 22 FCR 495, 521. It seems that this issue may also arise if the question is whether a body comes within the expression ‘State’ in s 75 of the Australian Constitution: cf Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 39 (Mason, Wilson, Brennan, Deane and Dawson JJ). However, once it is decided that Parliament did possess an intention that one of its creatures was to enjoy the ‘shield of the Crown’, it would be wrong, for the reasons given in the text, for the courts to say that, despite Parliament’s intention, one of its creations is not entitled to Crown immunities (such as the presumption) because it is not carrying on a ‘traditionally’ or ‘essentially’ governmental function.

[245] It is true that in State Government Insurance Corporation v Government Insurance Office of NSW [1991] FCA 198; (1991) 28 FCR 511, 516, French J said that an express provision in an Act of the Parliament of NSW that the defendant should be of the Crown ‘for the purposes of any Act’ could have direct application only if the exemption of the defendant from other Acts of that Parliament (not Acts of other Parliaments) was in question. This, however, is explained by the interpretation of the word ‘Act’ in the quoted provision; ‘Act’, according to the Interpretation Act 1987 (NSW), means an Act of the Parliament of NSW only. See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1994) 28 ATR 378, 381 (Nicholson J).

In Bradken [1979] HCA 15; (1979) 145 CLR 107, s 8(1) of the Railways Act 1914 (Qld) declared that the State Commissioner of Railways ‘for all the purposes of any Act, shall have and may exercise all the powers, privileges, rights and remedies of the Crown’. This, said the High Court of Australia, was automatically effective according to its terms when it was sought to exempt the Commissioner from an Act of the Commonwealth Parliament: see 114 (Gibbs ACJ), 126ff (Stephen J), 133ff (Mason and Jacobs JJ), 139 (Murphy J dissenting). This was confirmed in Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22, 28 (Gibbs CJ), 38ff (Mason, Wilson, Brennan, Deane and Dawson JJ) (who also called in aid the other reasons for holding that the Commissioner is of the Crown). See also Hawthorn Pty Ltd v State Bank of SA (1993) 40 FCR 137, 149 (O’Loughlin J); Jellyn v State Bank of SA [1996] 1 Qd R 271, 280–96 (Fitzgerald P, Pincus JA and Demack J).

[246] (1997) 190 CLR 410, 445.

[247] For a similar statement in a somewhat unusual statutory context, see Bass [1999] HCA 9; (1999) 73 ALJR 522, 529 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[248] (1999) 196 CLR 392.

[249] Mining Act 1978 (WA) s 8.

[250] Commonwealth v Western Australia (1999) 196 CLR 392, 421, 479.

[251] Eg, ibid 473–5.

[252] Ibid 472–3.

[253] Jacobsen [1995] HCA 6; (1995) 182 CLR 572, 586.

[254] Commonwealth v Western Australia (1999) 196 CLR 392, 474.

[255] Ibid.

[256] Ibid 447.

[257] Ibid 432.

[258] See Bropho [1990] HCA 24; (1990) 171 CLR 1, 22, 28.

[259] Commonwealth v Western Australia (1999) 196 CLR 392, 435.

[260] Ibid.

[261] Ibid 409–10.

[262] Ibid 411.

[263] Ibid. Cf the less satisfactory views of Stephen J on a similar question: Bradken [1979] HCA 15; (1979) 145 CLR 107, 129.

[264] Commonwealth v Western Australia (1999) 196 CLR 392, 409–10, fn 65.

[265] [1999] HCA 9; (1999) 73 ALJR 522, 527ff (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[266] Bradken [1979] HCA 15; (1979) 145 CLR 107; Bass [1999] HCA 9; (1999) 73 ALJR 522, 526–8 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 542 (Kirby J); above n 160.

[267] [1989] USSC 118; 491 US 58 (1989).

[268] Acts Interpretation Act 1901 (Cth) s 22(1)(a). For similar State provisions, see Interpretation Act 1987 (NSW) s 21; Interpretation of Legislation Act 1984 (Vic) s 38; Acts Interpretation Act 1954 (Qld) s 36 (‘person’ and ‘corporation’); Interpretation Act 1978 (NT) s 19; Interpretation Act 1967 (ACT) s 14(1). However, this argument would not seem to be open under the following State provisions, which do not use the words ‘body politic’, or any other phrase that could possibly include governments: Interpretation Act 1984 (WA) s 5; Acts Interpretation Act 1915 (SA) s 4(1); Acts Interpretation Act 1931 (Tas) s 41(1).

[269] The phrase ‘body politic’ is indeed used in provisions such as s 5 of the Northern Territory (Self-Government) Act 1978 (Cth) and s 7 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) to describe rights of the Crown.

[270] Bass [1999] HCA 9; (1999) 73 ALJR 522, 528ff (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 542 (Kirby J).

[271] See also Trade Practices Act 1974 (Cth) s 2C(1)(a); above n 33.

[272] Bass [1999] HCA 9; (1999) 73 ALJR 522, 529 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

[273] See Commonwealth v Western Australia (1999) 196 CLR 392, 409 (Gleeson CJ and Gaudron J); Bass [1999] HCA 9; (1999) 73 ALJR 522, 527, 531 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 674 (Gleeson CJ, Gummow and Hayne JJ).

[274] Above nn 122–132 and accompanying text.

[275] See Owen v City of Independence[1980] USSC 99; , 445 US 622 (1980) and text accompanying above n 116.

[276] Melbourne University Act 1958 (Vic) s 4.

Melbourne University Law Review

Search AustLII

All Databases

Cases & Legislation

Journals & Scholarship

Law Reform

Treaties

Libraries

Communities

LawCite

Australia

CTH

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

New Zealand

Specific Year

Any

Any

Taylor, Greg --- "Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown" [2000] MelbULawRw 4; (2000) 24(1) Melbourne University Law Review 77

Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown

INTRODUCTION

II A DEFENCE OF THE PRESUMPTION IN INTERGOVERNMENTAL CASES

III CANADA

IV UNITED STATES OF AMERICA

V AUSTRALIA: THE PRESUMPTION APPLIES IN FEDERAL CASES

VI REBUTTING THE PRESUMPTION: THE DEATH OF NECESSARY IMPLICATION?

VII THE EFFECT OF BROPHO ON BRADKEN

VIII NECESSARY IMPLICATION REDIVIVUS?: TWO

CASES FROM 1999

IX CONCLUSION

Print

Download

Cited By

All Databases

Cases & Legislation

Journals & Scholarship

Law Reform

Treaties

Libraries

Communities

LawCite

Australia

CTH

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

New Zealand

Specific Year

Any

Any

Taylor, Greg --- "Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown" [2000] MelbULawRw 4; (2000) 24(1) Melbourne University Law Review 77

Commonwealth v Western Australia and the Operation in Federal Systems of the Presumption that Statutes Do Not Apply to the Crown

INTRODUCTION

II A DEFENCE OF THE PRESUMPTION IN INTERGOVERNMENTAL CASES

III CANADA

IV UNITED STATES OF AMERICA

V AUSTRALIA: THE PRESUMPTION APPLIES IN FEDERAL CASES

VI REBUTTING THE PRESUMPTION: THE DEATH OF NECESSARY IMPLICATION?

VII THE EFFECT OF BROPHO ON BRADKEN

VIII NECESSARY IMPLICATION REDIVIVUS?: TWOCASES FROM 1999

IX CONCLUSION

Print

Download

Cited By

Join the discussion

VIII NECESSARY IMPLICATION REDIVIVUS?: TWO

CASES FROM 1999