Intergovernmental Relations & Immunities
Intergovernmental Immunities
Pre Engineers
• Autonomous & sovereign levels of government that were mutually immune
• No interference allowed. Drastic but straightforward.
• Doctrine worked equally in both directions.
Situation after Engineers Engineers Case (1920)
• Majority rejected doctrine of implied intergovernmental immunities
• Majority confirmed that the Cth could regulate the States in their capacity as employers.
• No longer a mutual immunity presumption
2 Limbs of Exception Melbourne Corporation (State Banking Case) (1947)
• Case formulated the two exceptions that apply
1. Discrimination Doctrine The Cth parliament cannot enact laws which discriminate against States by placing special burdens or disabilities upon them
2. Structural Integrity Doctrine Cth cannot enact laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as govts.
• These two exceptions are best viewed as two limbs of the one ‘reservation’. per Mason CJ Qld Electricity.
Discrimination Doctrine Queensland Electricity Commission v Cth (1985)
• Federal law purported to require the QEC & Electrical Trade Union to submit to arbitration.
• Court struck down law as it singled out QEC & discriminated against them in their activities as an agent of the Qld Govt.
• Must look to the substance of the actual operation of the law to see whether it actually discriminates. per Deane J
• Discrimination can be either direct or indirect. Indirect when “the true effect of the law may be to isolate” some groups from the general law. Per Mason J
• Discrimination prohibited against (per Mason J)
o One state (ie. Burdening one state with a particular disability by isolating it from the law applicable to other states)
o All states generally
o The State as well as its agencies
o But NOT a law that deprives a state of a right, privilege or benefit not enjoyed by others so as to place it on an equal footing with the others.
Permissible discrimination
• Permissible discrimination when authorised by HOP
• “the singling out of the state for imposition of some special burden or disability must itself have such a real & close connexion with the subject matter of the legislative power as to warrant the conclusion that…[it] was intended to authorise such discrimination against the states in the context of such law” Deane in QEC
• Permissible when the law deprives a state of a right, privilege or benefit not enjoyed by others so as to place it on an equal footing with the others.
• S51 – Cth has the power of taxation, but so as not to discriminate between the States or parts of States.
• S99 – Cth not to give preference...by any law or regulation of trade, commerce or revenue…to one State or any part thereof over another State or any part thereof. Only applies to laws under s 51(i) & s 51(ii) Morgan v Cth
Structural Integrity Doctrine Re Australian Education Union (1995)
• States are immune from Cth legislation if it would destroy or curtail their continued existence or capacity to function as govt’s. – their “integrity & autonomy” per majority.
• →It would offend the principle of federalism upon which the Const is founded
• Challenge to a Federal award governing employment conditions
• Held that Cth would breach implied limitation if it tried to tell the States
o Who to employ
o How long to hire them for
o Nature of redundancy
o [basically can’t influence the size or nature of the states public service]
• But Cth allowed to prescribe by federal award ‘minimum wages & working conditions’ if it “takes appropriate account of any special functions or responsibilities which attach to the employers in question.” Joint J
• Number & terms & conditions of employees at higher levels of govt is critical to State’s capacity to function.
• So Cth can’t interfere with higher level ie. Ministers, ministerial assistants & advisers, heads of depts & high level statutory office holders, parliamentary officers & judges.
Industrial Relations Act Case (1996)
• Doctrine from Education was once again accepted
• Cth award legislation could validly apply except to higher level employees and to State decisions concerning the number, identity, term of appointment of employees, and who they dismiss on redundancy grounds (with or w/out notice).
Payroll Tax Case (1971)
• Cth law imposed a 2.5% payroll tax on employers, including on the States.
• Supported State Banking but did not apply to the facts in this case
• A law ‘directed to the states to prevent their carrying out their functions as part of the Commonwealth’ ‘cannot be for the peace, order and good government of the Commonwealth’ per Windeyer J
State Laws binding the Cth
• The law in this area is still unclear Jacobson v Rogers (1995)
• Generally established that State govt’s rarely have the power to bind the Cth
• Distinction between capacities and activities Cigmatic (1962)
o Cth Activities can be bound
- Exercise of its capacities
o Cth Capacities cannot be bound
- Rights, powers, privileges, immunities
Cigmatic (1962)
• State laws have no power to enact laws that impair the capacities of the Cth executive, but can enact laws of general application that regulate the activities of the Cth, amongst other persons.
• Concerned competing State & Cth claims for payment of taxation debts in a bankruptcy
Residential Housing Tribunal v Henderson (1997)
• Affirmed Cigmatic distinction making policy/operational distinction
• Nothing “would suggest that the crown or its agents enjoy any special immunity from the operation of laws of general application”
• Concerned Federal Defence Housing agency seeking protection from State residential tenancies legislation.
Cross Vesting – Conferring State Jurisdiction of FC’s
• Desirable on the grounds of efficiency & convenience
• Given that the federal govt sometimes lacks power to legislate on issues comprehensively, there can be cooperation between State & Federal authorities to make regulation in certain areas more successful.
• Cross vesting scheme designed to enable every aspect of a single dispute to be heard by a single court
Cross Vesting Re Wakim (Cross Vesting Case) (1999)
• Issue whether the cross vesting scheme (in both directions) was constitutional
• Held by majority that State jurisdiction cannot be vested in a FC, though s 77 allows for the vesting of federal jurisdiction in State courts.
• “the excuse of cooperative federalism is not enough to sustain an outcome that is not provided for by the Constitution” per McHugh J
• Dissenters outraged at the lack of common sense. Kirby J, eg, thought that s51(39) authorised Cth to make laws incidental to judicial matters, and that this includes matters of effectiveness & efficiency.
Corporations Law R v Hughes (2000)
• In the realm of corporations law, all states agree to enact the same laws to create a level playing field.
• WA act created the offence, and another provision deemed it to be an offence against the Cth, giving power to prosecute to Cth authorities
• Question whether this power could be conferred constitutionally
• The validity of the prosecution by federal authorities was upheld in this case
• But, outcome was only allowed because the offence would have fallen within one of the Cth’s HOPs anyway.
• Basically, the judgment rendered the agreement superfluous, cause the same result could have been reached by a Cth act itself.
• When practical (substance) and legal (form) of law fall under established head of federal legislative power, Commonwealth may operate in state jurisdiction