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Implied Intergovernmental Immunities Theory Notes

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Implied intergovernmental immunities (implied limit to legislative power) Background?

There is a common law presumption that statutes do not bind the Crown, and another presumption in our federal system is that statutes passed at one level of legislature do not bind the Crown in right of the other. These are now considered weak presumptions The presumptions are separate from constitutional immunity.

Pre-1920s cases: total immunity (with limited exceptions)
? D'emden v Pedder: Cth and its officers were impliedly immune from state Legislation
? Railway Servants Case (1906): State and its officers impliedly immune from Cth legislation.
? There were some exceptions since some legislative powers would not make sense if the governments were not permitted to bind each other Engineers' Case: abandonment of immunity
? Engineers brought industrial proceedings against 843 employers including three WA government employers.If the implied doctrine of intergovernmental immunities applied, those State government employers would have been immune from the jurisdiction of the court (since that jurisdiction had been established under a federal statute, the Conciliation and Arbitration Act 1904 (Cth)).
? DECISION: implied immunities doctrine abandoned. Commonwealth had the power to bind State government instrumentalities where it applied to them on a true construction of the legislation. Obiter authorised the exercise of reciprocal power by the States.

State immunity from Commonwealth laws/Commonwealth legislative power over the States Melbourne Corporation v Commonwealth (the State Banking Case) (1947)
? S 48 of the Banking Act 1945 (Cth) provided that a private bank could not engage in business with a State government or government authority without the consent of the federal Treasurer. The section was intended to force State governments to bank only with the federally-owned bank.
? A local government authority, Melbourne Corporation, sought to bank with a private bank. The Treasurer refused permission and urged MC to switch to the Commonwealth Bank of Australia (which was federally-owned).
? MC sought a declaration that s 48 was invalid.

DECISION: s 48 invalid for discrimination as the law had no effect on other taxpayers. Rich J (with majority approving) held Cth laws could be impliedly limited if: o


The Cth law would prevent a State from continuing to exist and function as such (approved by majority). This could occur if
? The Cth singles out a State or States for the imposition of restrictions (the Cth may not discriminate against the States by treating them differently to other legal persons)
? the Commonwealth passes laws of general application which fundamentally impede the States from carrying out essential government functions Rich J also held that a law that fundamentally impedes a State in its performance of essential government functions would not validly apply to a State (a majority did not agree with this)

Queensland Electricity Commission v Commonwealth (1986)
? QEC was a statutory body representing the Crown in right of Queensland. It generated 97% of QLD's electricity and distributed it via government-controlled Electricity Boards.
? Electrical Trades Union was engaged in a dispute with QEC and the Boards, as well as electrical authorities in other States. QLD dispute was the most volatile.
? Conciliation and Arbitration (Electrical Industry) Act 1985 (Cth) imposed special rules regarding the resolution of certain disputes by the CAC, including that the CAC had to settle the dispute as expeditiously as possible, that the disputes be heard by the Full Bench of the CAC and that the CAC could not refrain from hearing s 6 disputes.
? S 6(1) provided that the Act applied to the existing dispute between the QEC and other State authorities and the Union, while s 6(2) extended that application to future disputes between unions and electricity authorities in Queensland. The special rules only applied to the dispute with the QLD authorities, so did not have to be applied to any dispute involving electrical authorities of other States.
? The QEC and Electricity Boards challenged the validity of the Act. DECISION: Act invalid for discriminating against a State govt instrumentality. The anti-discrimination principle applies so as to prohibit discrimination against a single State (in addition to States collectively as in State Banking) and against statutory government instrumentalities.?It was irrelevant that the private electricity providers who generated the other 3% of electricity in QLD were also affected, since discrimination is a question of substance, not form. Deane and Brennan J held that 'rational' discrimination (if the affected State had a special quality the legislation was calculated to deal with) was permitted Note that the majority in QEC also accepted that laws threatening the continued existence of the States or their functioning as States would be prohibited.

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