Commonwealth v New South Wales [1923] HCA 23

Commonwealth v New South Wales [1923] HCA 23 - HCA 1923 case summary — Zoe

[18]

give rights to proceed in cases other than those as to which juris- diction had already been given. If sec. 78 means that legislation must be passed before there is a cause of action, it does not extend to cases where causes of action already existed under sec. 75; but sec. 78 has to do with cases contemplated by secs. 76 and 77, price provide for the creation of new Courts whose jurisdiction had not yet been defined in the Constitution. So that sec. 78 has its uses apart from cutting down the meaning of sec. 75. Once a Court is created giving jurisdiction over two Governments, the objections relied on with reference to sovereign States are inapplicable (see Dominion of Canada v. Province of Ontario (1) ). Assuming that legislation is necessary before the Commonwealth can sue a State in the High Court, sec. 38 (c) of the Judiciary Act effects that object. That sub-section means that the High Court shall have a right to try suits by the Commonwealth against a State and that no other Court shall. Then sec. 64 provides that the suit is to be assimilated to an action between subject and subject. The words of sec. 64 were intended to have the same effect as similar words were determined to have in Farnell v. Bowman (2). (See also Commonwealth v. Miller (3); Commonwealth v. Baume (4); Baume v. Common- wealth (5).) Reading secs. 38 (c) and 64 together, the suits men- tioned in sec. 38 (c) are included in sec, 64, and sec. 64 contains the legislation which is said to be necessary under sec. 78 of the Con- stitution, The Constitution did not contemplate that it was neces- sary to give any right to proceed against a State in the High Court if the right was already given by State law to proceed against the State in the Supreme Court of that State. Alternatively, the word "person" in see, 58 of the Judiciary Act is wide enough to include the Commonwealth (Acts Interpretation Act 1901, sec. 22 (a) ). {Counsel also referred to Commonwealth v. New South Wales (6) ; Commonwealth v. Queensland (7); South Australia v. Victoria (8) ; Commonwealth v. New South Wales (9).]

[42]

It may be convenient to refer first to the assertion (which is the root of the defendant's contention) that an Australian State | a "sovereign State." Learned counsel placed the matter on t same plane as a foreign independent State, the " representative of which is included in sub-sec. 11. of sec. 75. As to such a " rept sentative " it was said the consent of the foreign State was neces and so of an Australian State. There are two fallacies involved in this. The first is that there is any analogy whatever between position of the " representative " of a foreign State and that of one of the States of Australia. In saying that, we put aside all distinctions between consuls and ambassadors and assume highest character, that of an ambassador. This is conceding ve much, seeing that it is difficult to imagine an ambassador to Au tralia. But what is the principle of the immunity of an ambassador } We need refer to three cases only, as they are very recent : M7 s Bey v. Gadban (1), In re Republic of Bolivia Exploration Syndicate Ltd. (2) and In re Suarez; Suarez v. Suarez (3). In the first mentioned case A. L. Smith LJ. quotes (4) with approval from Lor Campbell's judgment in Magdalena Steam Navigation Co. v. Martin (5), that an ambassador "is not supposed even to live within # territory of the sovereign to whom he is accredited, and, if he has done nothing to forfeit or to waive his privilege, he is for all juridie purposes supposed still to be in his own country." Davey L.J. (6), quoting from the head-note to I'he Parlement Belge (7), s "As a consequence of the absolute independence of every soverei authority and of the international comity which induces ever sovereign State to respect the independence of every other soverei m1 State, each State declines to exercise by means of any of its Co any of its territorial jurisdiction over the person of any sovereig or ambassador, or over the public property of any State which destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within it territory." There is nothing in the Constitution to prevent the

[45]

case - where person and property are judici side the territory and beyond the territorial jurisdiction of the local Courts - and the case of an Australian State, an integral and necessary part of the territory of the Commonwealth in relation to this Court? New South Wales is not a foreign country. The people of New South Wales are not, as are, for instance, the people of France, a distinct and separate people from the people of Aus- tralia. The Commonwealth includes the people of New South Wales as they are united with their fellow Australians as one people for the higher purposes of common citizenship, as created by the Constitution. When the Commonwealth is present in Court as a party, the people of New South Wales cannot be absent. It is only where the limits of the wider citizenship end that the separateness of the people of a State as a political organism can exist. To appeal to the analogy of an entirely foreign independent State is to appeal to an impossible standard. And again, this Court is not a foreign Court. It is the tribunal specially created by the united will of the Australian people, as a Federal Court and as a national Court. It has very special functions in relation to the powers, rights and obligations springing from the Constitution and the laws made under it - matters which concern the Commonwealth as the organiza- tion of the whole population of this Continent, the States in their relations to the Commonwealth and to each other, and the people in their relation to the Commonwealth and to the States regarded as constituent parts of the Commonwealth. Besides those Federal functions, this Court has by the Constitution an appellate juris- diction, which extends to the interpretation and enforcement of purely State laws, unrelated to any Federal consideration. In this aspect, it is as truly an appellate Court for each State as if it were competently created for the purpose by State or Imperial legislation. How in the face of these considerations can there possibly be any (1) (1910) A.C., 262, at p. 266.

[55]

Affecting consuls, or other representatives of other countries : (111) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: (tv.) Between States, or between residents of different States, or between a State and a resi- dent of another State: (v.) In which a writ of mandamus or pro- hibition or an injunction is sought against an officer of the Common- wealth: the High Court shall have original jurisdiction." What can be plainer? " In all matters" (and this is one) " in which the Com- monwealth . . . is a party" (and this is such a matter) "the High Court shall have original jurisdiction." How, without direct violence to these explicit words, can it be contended then that this Court has not in this case " original jurisdiction" ? We put aside for reasons already given the contentions as to " foreign sovereigns," and "sovereign States," and take up the other grounds of contest. Sec. 78 says: " The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power." The exercise of that power, it is said, is a condition precedent to the suability of a State in the High Court in original jurisdiction. That is an error which it is not difficult to detect. There is undoubtedly in our common law a principle that the Sovereign cannot be sued in his own Courts. A tort by the Sovereign is impossible at common law; the fault, if any, being attributed to the subject who actually committed or authorized it - the Sovereign being assumed never to authorize a breach of the law. A contract or deprivation of property is open to redress by means of a petition of right, when, by consent of the Sovereign, justice is done. But there is also another principle in our common law, that the Sovereign may always sue in his own Courts (see Bradlaugh v. Clarke (1) ). Even apart from statute the Crown may in some instances sue in one right and defend in another (see Williams v. Attorney-General for New South Wales (2) ). Obviously the matter was one to be dealt with by the Con- stitution, which created mutual rights and obligations between Commonwealth and States and foresaw the necessity of some tribunal, not the judicial organ of any one State exclusively,

[61]

detention of property wrongfully seized into the hands of the Crown. And when it is found that the Act uses words sufficient to embrace new remedies, it is hard to see why full effect should be denied to them." It is true that their Lordships went on to state further reasons confirming the conclusion just stated; and those further yeasons included a reference to sec. 3 in which the rights of the parties were declared to be as between subject and subject. But the earlier reasons are the broad main reasons, and are sufficient in themselves. They amount to saying that, notwithstanding the common law maxim, plain words of a statute expressly dealing with actions against the Crown are not to be cut down from their full signification where the nature of the statute requires for its proper and just effect that their full sense should be retained. Applying that principle, is it not obvious that the Constitution would fail greatly in effect if the word "matters" were not considered to include even " torts,' in other words, if it were not considered to include all claims for infringements of legal rights of every kind

all claims referable to a legal standard of right? The word would, without question, include a claim for breach of contract. Why should it not include a breach of some constitutional declara- tion of right or duty created by the very instrument containing sec. 75% For instance, sec. 90, forbidding States imposing customs laws or granting bounties on the production or export of goods after uniform customs duties were imposed by the Commonwealth. Suppose a State proceeded to raise a military force, contrary to sec. 114, or suppose the Commonwealth imposed a tax on the property of a State, or suppose the Commonwealth proceeded to make a railway in a State without that State's consent: in any of those cases is it possible to think that sec. 75 of the Constitution was not intended to enable the complaining party - whether Commonwealth or State - to approach the High Court for redress? And if so, where is the room for the maxim at all in sec. 75 in view of this new Constitutional situation? The truth is that the King in his Imperial Parliament in passing the Constitution not only preserved the doctrine of the indivisibility of the Crown that applies throughout his dominions, but also recognized the divisibility of the powers of the

[79]

so far as original process in the High Court was concerned. As to all cases of controversies in which there might be the element of con- flicting interests politically considered, an opportunity was definitely created of invoking the jurisdiction of a tribunal independent of any State, and so placed as to tenure as to be specially secure, even in relation to the Commonwealth. But the Constitution itself gave no right to anyone, whether State or individual, to proceed against the Commonwealth in any other Court, whether a Federal or a State Court. As to States, it gave no right to any of the residents of a State to sue that State, either in the High Court or any other Court. There was not the same apparent necessity. Much ground remained to be covered within the ambit of the judicial power of the Common- wealth before there existed the same facility of suing the Crown as exists in most of the States within their own jurisdiction. To this, sec. 78 is directed, and by that section the Commonwealth Parlia- ment is empowered to confer, in respect of all matters within the Federal judicial power, rights to proceed that are not already con- ferred by sec. 75. Observe the expression is "rights to proceed." It is not "the right to proceed," which is really the sense which the defendant's argument applies to sec. 78. We do not read sec, 78 as directed to mere procedural regulations which affect not any right to proceed, but the method of procedure. That is covered by other sections, as, for instance, sec. 51 (xxx1x.). But we do read it as merely supplementary to what the Constitution, so far as sec. 75 extends, did for itself in relation to the matters there mentioned. Tt enables the Commonwealth Parliament, if it thinks right, to do the same in other matters within the judicial power. But it does not enable the Commonwealth to subject a State to liability for tort in cases within sec. 75, That is not its function. The Constitution assumes that a right to proceed, either under sec. 75 of its own force or under sec. 76 by force of sec. 78, connotes an effective procedure. The various sections of the Judiciary Act which were referred to in argument thus fall, at all events for the most part, into their appro- priate places. But it is profitless to pursue them in detail, except to say that none of them provides for the Commonwealth suing a State. The word " person" (even if sec. 22 of the Acts Interpretation Act 1901 be assumed to include Commonwealth and State as a body

[103]

stance the Sovereign as head of the body politic of the State of South Australia is plaintiff, and as head of the body politic of Victoria is also defendant. . . . Sofar . . . as a controversy requires for its settlement the application of political as distinguished from judicial considerations, I think that it is not justiciable under the Constitution." "' Matters " in sec. 75 are confined to matters which might come before a Court of justice - as, for instance, running agree- ments over railways. "A matter between States, in order to be justiciable, must be such that a controversy of like nature could arise between individual persons, and must be such that it can be de- termined upon principles of law. . . . In . . . trespass by one State upon territory in the de facto possession of another, I have no doubt that this Court would have jurisdiction." The late Barton and O'Connor JJ. concurred. The latter defined " matters" in sec, 75 as "matters capable of judicial determination" (3). Isaacs J. said (4) that the word "'matters' . . . includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject." As for myself, I doubted whether there was any cause of action, as the State was not proprietor of the lands, but only donee of a power over them ; but I concurred with the view that the High Court had power to entertain the action under sec. 75, and to give some judgment in favour of the plaintiff, if the plaintiff had a cause of action : " Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between private persons, we could give relief on principles of law; but not otherwise " (5). Jn short, to give jurisdiction to a particular Court over actions or matters of a certain character is not to make a matter actionable or _ justiciable if it is not otherwise actionable or justiciable under some : (1) (1911) 12 C.L.R., 667. (4) (1911) 12 C.L.R., at

At a glance

Court

Decision date

Before

Source

Judgment (126 paragraphs)