sW8: INTERGOVENRMENTAL IMMUNITIES INTRODUCTION Who is the Crown? The Crown as signifying the government. The Monarch Governors and Governors-General State and Cth Executive Governments (Ministers, departments, public servants) Government agencies and instrumentalities (e.g. the Defence Housing Authority) Local Government? (No – a creature of State legislation) Sue v Hill (1999) 199 CLR 462 -the Crown Represents the body politic Representative of the State in international relations The Government Paramount powers of the UK
Immunity from suit: Commonwealth Crown: abolished by s 56 of the Judiciary Act 1903 (Cth) Crown of SA: abolished by s 5 of the Crown Proceedings Act 1992 (SA) Does the Legislation Bind the Crown? Previously, Crown presumed not to be bound by statute unless by: Express words (Bradken Consolidated Pty Ltd v Broken Hill Proprietary Co Ltd (1979); or Implication "manifest from the very terms of the statute" and the "purpose of the statute being otherwise wholly frustrated“ (Province of Bombay v Municipal Council  AC 58) Bropho v Western Australia (1990) 171 CLR 1 Mason CJ, Deane, Toohey, Gaudron and McHugh JJ: Legislative intention the key. Strength of presumption depends on circumstances, including content and purpose of provision and identity of entity to which it purports to apply. The position in SA Section 20 Acts Interpretation Act 1915 (SA) (1) … an Act passed after 20 June 1990 will, unless the contrary intention appears (either expressly or by implication), be taken to bind the Crown, but not so as to impose any criminal liability on the Crown. (5) For the purposes of this section— (a) a reference to the Crown extends not only to the Crown in right of this State but also (so far as the legislative power of the State permits) to the Crown in any other capacity; (b) a reference to an agent of the Crown extends to an instrumentality, officer or employee of the Crown or a contractor or other person who carries out functions on behalf of the Crown;
Nurul Azwa Mohd Rodzi Australian Constitutional Law Notes (Sem 1 2013)
A. Commonwealth’s ability to bind the State. Section 51 ‘The Parliament shall, subject to this Constitution, have power to make laws … Sections 106 (saving of Constitution) and 107 (Saving of power of State Parliaments) Principle of federalism Early formulation Commonwealth could not legislate to affect the operation of State government Reciprocal Exploded in Engineers’ Case STEPS 1. Austin reformulation of the Melbourne Corporation principle: Cases, Facts Austin (2003) Superannuation surcharge applying to judicial officers (who were otherwise exempt from law because their pensions came straight out of State consolidated revenue) Test Gaudron, Gummow and Hayne JJ at 249 (BW 1123) ‘But one limitation’: ‘The question presented by the doctrine in any given case requires assessment of the impact of particular laws by such criteria as: “special burden” and “curtailment” of “capacity” of the States to “function as governments”’
Overall impact was to ensure Discrimination – an illustration of a law which impairs the super contribution surcharges fell capacity of the State to function equally on all high income earners, but the actual legislation targeted Held: Government employees. Gaudron, Gummow and Hayne JJ It is necessary for the States to determine the Rejected two limbs of Melbourne terms and conditions of appointment and Corporation remuneration of judges (incl retirement benefits). Encourages persons of appropriate qualifications Discrimination alone not sufficient to judicial office. to attract immunity. Judges can be subjected to general taxes; but the superannuation surcharge legalisation placed a special burden on them (as high income earners). Kirby J – disagreed Surcharge is just a general tax law – no evidence that the surcharge would be a disincentive for judges to serve. Surcharge applies to other high...
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