The Australian constitution assigns to the Commonwealth Parliament a specified list of powers in the placita of s 51
- The residual powers not assigned are left to the States – much like in the United States
  - Contrast the approach of Canada which gives the Dominion Parliament residuals powers not exclusively assigned to the Provinces and the Constitution of India to the national Parliament
- Furthermore the Australian arrangement is one of concurrent powers – even where the Commonwealth has a grant of power the States can legislate but in the event of a conflict the Commonwealth is to prevail (s 109 of the Constitution)
  - There are exceptions as listed in the Constitution – e.g. the power to levy excise duties are exclusively the power of the Commonwealth
  - Initially it was thought that concurrency would imply that each level of government could bind one another – but the HCA denied this possibility due to the “implied immunity of instrumentalities” doctrine
  - However, after the Engineer’s Case this idea was swept away

This doctrine asserted that if two levels of government occupied the same geographical territory then they are immune from one another’s laws; rather than emanating from the Constitution this was said to be necessarily implied in the very idea of Federalism

D’Emden v Pedder (1904) 1 CLR 91

Facts: D’Emden, the CTH Deputy PMG for TAS gave a receipt for his CTH salary to a CTH office without paying stamp duty required by TAS law. It was held that the State law couldn’t apply because CTH officers were necessarily immune from State laws.

Griffith CJ (for the Court):

Each of the powers of the CTH and State is, within the ambit of its authority as a sovereign state, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution – express or necessarily implied
The CTH has with respect to s 51 sovereign power subject to such limitations – but the idea of sovereignty subject to extrinsic terms is contradictory
- Hence it is the essence of the Constitution that the CTH is entitled, within its authority, to exercise its legislative and executive powers in absolute freedom without any interference except as in the Constitution
- Hence if a State attempts to give its legislative/executive authority an operation which would fetter/control/interfere with the free exercise of the legislative/executive power of the CTH, the attempt, unless expressly authorized by the Constitution, is invalid and inoperative

A similar argument was applied by Griffith CJ in Deakin v Webb (1904) 1 CLR 585 to hold that a CTH cabinet Minister was not liable to State income tax. The argument had added force in AU, his honour ruled, because:
- Income taxes in several states are unequal and are imposed at State discretion; hence to give effect to provisions of federal laws regulating officer salaries it would be necessary to make special provision to adjust their incomes when transferred from on State to another.
- State taxation of federal salaries is also objectionable also because:
  - It diminishes the recompense allotted by the CTH to its officers
  - It interferes with the freedom of action of the CTH in the transfer of its officers from state to state
In both of these cases Griffith CJ relied heavily on American Authority
In a different context in the Municipal Rates Case, O’ Connor J gave a more fuller explanation of the “implied immunities” doctrine
- In his judgement he adverted to the circumstances of the convention and the simultaneous development of US law at the time which ‘must be taken’ to have been in the mind of the Convention. The US courts rested their reasoning on principles of the Constitution and what was necessarily involved in granting sovereign powers
  - He ruled “From the very nature of the Constitution, and the relation of States and Commonwealth, in the distribution of powers, it became necessary to provide that the sovereignty of each within its sphere should be absolute, and that no conflict of authority within the same sphere should be possible”
The CB writers refer to the fact that the Privy Council ruled contrary to the doctrine in Webb v Outtrim (a decision heard bypassing the HCA) but later in Baxter v Comm. Of Tax the HCA ruled they spoke without jurisdiction and hence confirmed the implied immunities doctrine
- In an alternative basis in Baxter (the case involving the application of a state income tax to a CTH customers officer) Isaacs J ruled that the State income tax didn’t interfere with the CTH’s constitutional function but merely required the officer to pay his just share for the burden of his fellow citizens in return for the protection the state offers him
- The problem was eventually fixed by (the constitutionally valid) Commonwealth Salaries Act which gave power to states to legislate (if tax immunity was a CTH privilege they could give it up – Chaplin’s Case)
The reciprocal idea, that State agencies would be shielded from CTH laws was hinted at earlier by Griffith CJ and in the Railway Servants’ Case was held to be so in the context of the Commonwealth Conciliation and Arbitration Act

Federal Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ Case) (1906) 4 CLR 488

In argument Higgins KC (then A-G) put to the Court that the immunities doctrine did not extend to instrumentalities used for the purpose of commerce. Griffith CJ, however, disagreed on the basis that State railways were always recognized as a function of government.

Griffith CJ in his judgement placed emphasis on the many references to State railways in the Constitution

His honour emphasised that the root of the immunity of instrumentalities doctrine stemmed from the ‘interference or control’ that one level of government exercises over the other
- Whether or not the exercise of the power would be beneficial was an irrelevant question for parliament
In addressing the argument that the State Railways was not an instrumentality his honour emphasised it’s governmental character threefold:
- That the ‘execution or administration of the laws of the state in the strictest sense is a governmental function’
- That construction and maintenance of roads as a means of communications (according to ancient and modern authority) is a function of government – and railways are a form of highway subject to certain kinds of regulation
- When the Constitution was adopted – construction of railways was generally regarded as a governmental function

Hence it was held that the doctrine was sufficient to exclude the power to regulate conciliation and arbitration contained in s 51(xxxv) to State railways

After Isaacs and Higgins KC were admitted to the Bench a series of dissents on the doctrine emerged and awkward concessions were made

Attorney-General of NSW v Collector of Customs for NSW (Steel Rails Case) (1908) 5 CLR 818

Facts: The CTH imported a shipment of wire netting and lengths of steel railway from England – the CTH customs duty on both were disputed on two grounds – the inapplicability of the CTH customs Act to the Crown and the implied immunities doctrine – both failed. In this case Griffith CJ reasoned that the doctrine depended on implication and therefore could not override the express words of the constitution.

Griffith CJ:

If a power conferred upon the Commonwealth in express terms is of such a nature that its effective exercise manifestly involves control of some State government operation – the doctrine has no application
Laws with respect to trade and commerce (like quarantine, weights and measures) necessarily involve such control – taxation by customs is a mode of regulating trade
It was hence the legislature’s intention that the right of States to import goods is subject to CTH control

Barton J pointed out that the power to impose customs duties was expressly exclusive by s 90 – and though s 51(i) [trade and commerce] was not – it was inherently exclusive in the sense that no one State can speak for Australia as a whole. Implied in this reasoning is where the CTH has exclusive power the doctrine does not apply – only when there is concurrent powers does it apply.

R v Sutton (Wire Netting Case) (1908) 5 CLR 789

Facts: As above

Isaacs J (in dissent):

In distributing powers the Constitution regards the CTH and States as distinct and separate organisms for several function – this was necessary for governments operating in the same area on the same people.
But no doctrine of law can, if inconsistent with the dominant purpose of the Federal Constitution can be allowed to prevail.
Hence any theory which permits States to claim an exemption from federal law regulating matters of national concern which could frustrate the legislation or render it ineffective is inadmissible.

The main inroads to the immunity doctrine flowed from Higgins’ argument in the Railway Servants Case – even though it was rejected, Griffith CJ’s suggestion that railways were a governmental function provided a foothold for a change in the Engine Driver’s Case
- Facts: The case concerned the scope of the federal arbitration system (again) – the Melbourne City Council used “land engines” in connection with the supply of electricity, the sale of manure etc. Assuming the instrumentalities doctrine it should have been exempt from any...

#7312 - The High Court And Constitutional Interpretation - Federal Constitutional Law

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