Next, the question arises as to the true operation and effect of The Commonwealth v Cigamatic Pty Ltd

Next, the question arises as to the true operation and effect of The Commonwealth v Cigamatic Pty Ltd - [1997] HCA 36 - HCA 1997 case summary — Zoe

[81]

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. [107] The executive power of the Commonwealth enables the undertaking of "all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution" [108] . The execution and maintenance of the laws of the Commonwealth encompasses the protection and safeguarding of something authorised by a law of the Commonwealth [109] . The executive power includes what Evatt J described as "the benefit of certain preferences, immunities and exceptions which are denied to the subject" [110] . Executive action to execute or maintain the Constitution and Commonwealth law is within the exclusive field of Commonwealth power and outside the constitutional domain of the States. Isaacs J pointed this out in The Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd [111] . 1. Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169see also John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 79, 84, 87, 93. Federal jurisdiction which is conferred or invested by laws of the Parliament under ss 76 and 77 of the Constitution, including that of State courts, is protected by s 109 of the Constitution as well as by Ch III: Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 479; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 143-144 2. Section 2 of the Constitution provides for the Governor-General to have and to exercise in the Commonwealth during the Queen's pleasure such powers and functions as may be assigned to him. Whatever now be the scope for this provision, it is expressed to be "subject to this Constitution" and thus to s 61. 3. Barton v The Commonwealth (1974) 131 CLR 477 at 498 4. Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 230 5. Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 321 6. (1922) 31 CLR 421 at 440.

[113]

In South Australia v The Commonwealth (the First Uniform Tax Case) (1942) 65 CLR 373 at 423, Latham CJ said that any activity might become a function of government if the legislature so desires and that there was no general opinion as to what were the essential functions, capacities, powers or activities of an organised state. In Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 74, Starke J declared that "[w]hen a government acts under its constitutional power then its activities are governmental functions", and in Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 275, Windeyer J said there was no firm historical foundation for any distinction in law between those functions "which are properly or essentially governmental and those which are not". See also Bropho v Western Australia (1990) 171 CLR 1 at 19 2. See, eg, in New South Wales, the Civil Service Act 1884 NSW, the Public Service Act 1895 NSW, the Public Service Act 1902 NSW, the Public Service Act 1890 Vic, the Public Service Act 1915 Vic, the Public Service Act 1896 Q, Public Service Act 1922 Q, the Public Service Act 1916 SA, and Director-General of Education v Suttling (1987) 162 CLR 427 at 437-438cf, as to the continued use in the United Kingdom of the prerogative in the conduct of the Civil Service, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 397-400, 407, 411, 416-419; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 214 Roberts v Repatriation Commission (1992) 39 FCR 420 at 425 Finn, Myths of Australian Public Administration in Power (ed), Public Administration in Australia: a watershed, (1990) 41, at pp 52-53. 3. Finn, Law and Government in Colonial Australia (1987), p 58. In colonial Queensland there were over forty such statutes: Finn, Myths of Australian Public Administration in Power (ed), Public Administration in Australia: a watershed, (1990) 41, at p 50. 4. eg, the City Members and Suburban Members of the Board of Water Supply and Sewerage constituted by ss 5 and 6 of the Metropolitan Water and Sewerage Act 1880 NSW. 5. Finn, Law and Government in Colonial Australia (1987), p 59. 6. See Sweeney v Board of Land and Works (1878) 4 VLR(L) 440 at 447; Victorian Woollen & Cloth Manufacturing Co v Board of Land and Works (1881) 7 VLR(L) 461 at 468. 7. "A Century of Victorian Law", Journal of Comparative Legislation and International Law, 3rd series, vol 16 (1934), 175, at p 189.

[218]

Whilst it is true that dicta of Latham CJ [205] express a contrary view, his Honour does so in a context in which he states that "[a]ny State legislation professing to control a Commonwealth department would be invalid, because no State Parliament has or ever has had any power to legislate upon such a subject" [206] . He approached the meaning of s 52(ii) from the viewpoint that there was no requirement expressly to afford an exclusive power because any such power, of its nature, was necessarily exclusive. This may be so. However, the Constitutional Debates and the context of the Constitution make it tolerably clear that the purpose was to reserve, to the Federal Parliament, exclusive legislative control, relevantly, over "[m]atters relating to" naval and military defence departments. The framers were affected by the provisions of the United States Constitution generally prohibiting the States, "without the Consent of Congress", from keeping troops or ships of war or engaging in war (Art 1, s 10 cl 3). A similar prohibition appears in s 114 of the Australian Constitution with its requirement of consent of the Federal Parliament. The insistence of both the Australian and United States Constitutions upon the complete control of the Federal Parliament over this particular matter may be traced, historically, to the provisions of the Bill of Rights of 1688. That instrument declared that "raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against law" [207] . I leave aside the special reason for exclusive ongoing legislative power with respect to matters relating to posts, telegraphs and telephones, lighthouses, quarantine and customs and excise. These were arguably also within the core national responsibilities of the new Federal Parliament contemplated at the time of federation [208] . But, in the case of matters relating to the department responsible for naval and military defence, there were additional reasons for exclusivity of an enduring constitutional character.

[280]

The proposition that the States have no legitimate power, because not expressly given such power, to regulate the "legal relations [of the Commonwealth] with its subjects" [263] ignores the fact that the States are themselves creations of the Constitution. Every power of the Parliament of a colony which became a State was "continue[d] as at the establishment of the Commonwealth" [264] . The State constitutions, envisaged and continued by the Australian Constitution [265] , confer large and undoubted law-making powers on the State Parliaments. The Commonwealth and the States are intended by the Constitution to operate together, and in relation to each other, within the one federal polity, each making laws within the scope of their respective powers [266] . The provision in the Constitution of a power in the federal Parliament, within its areas of competency, to make laws which will override any provision of an inconsistent State law [267] removes the necessity to imply an immunity where none is expressed. Although it is true that sometimes the Executive Government of the Commonwealth might not be able, or willing, to procure the enactment by the federal Parliament of a law overriding State legislation, this fact provides no reason to support the implication suggested by Cigamatic . It is simply the result of the operation of our system of government. Far from it being impossible for State legislation of general application to bind the Commonwealth where, in like circumstances, it would apply to all others, the suggested immunity of the Commonwealth conflicts with what was both done and said in the Engineers' Case [268] . Of necessity, it has given rise to the doctrine that the Commonwealth might be "affected by" State laws [269] . But that doctrine is so uncertain of meaning and operation as to cast doubt on the integrity of the immunity principle itself. There is a similar lack of clarity in the suggested distinction between the power of State legislation of general application to regulate activities in which the Crown "chooses" to engage and the lack of authority to modify the Executive power of the Commonwealth. The one derives from the other. The suggestion that the Cigamatic principle might help to protect this Court from the dangers of political subjectivism and personal preference is illusory [270] . The suggested principle itself is unacceptably unstable and uncertain.

[283]

In Australian Postal Commission v Dao [278] , McHugh JA proposed a further explanation for the want of power in a State Parliament to bind the Commonwealth. This was [279] : The people of the Commonwealth are not represented in the Parliament of an individual State. In uniting in a Federal Commonwealth, the people of Australia cannot be taken as assenting to a Parliament of part of the people binding the Commonwealth, that is to say, "the people" of the whole of Australia. To permit the Parliament of a State to legislate for the Commonwealth is in effect to permit the part to diminish the sovereignty of the whole. Although this argument has recently been noted [280] and in laws involving the purported imposition of tax liability has an appeal based on an important constitutional doctrine, it may overlook the fact that the Australian nation is an integrated federal polity. It is one designed, as a practical matter, to operate efficiently in the relations between the Commonwealth and the States. In covering clause 5, the Constitution is declared to be binding on the "people of every State". The same people exercise rights, as contemplated by the Constitution, within their respective States (and self-governing Territories) and within the larger Commonwealth. It is not a diminution of the sovereignty of the Commonwealth to accept that laws made by Australian citizens through their State Parliaments may, in defined circumstances, bind the Commonwealth. This is no more than the fulfilment of the integrated federal system of government established by the Constitution. It is also the assurance of the rule of law by which all those present in a State (or otherwise affected) are bound by valid legislation [281] . There is no risk to the national character of the Executive Government of the Commonwealth, to the national character of federal legislation or to the fact that the Commonwealth is the representative of the people of the whole nation. By s 109 of the Constitution, where accepted by the federal Parliament, the Executive Government of the Commonwealth has ample means to protect its national character [282] .

[284]

In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 530 2. Constitution, s 107. Cf Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82-83 Zines, The High Court and the Constitution, 4th ed (1997), p 12. 3. Constitution, s 106. 4. Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at pp 524-526. 5. Constitution, s 109. 6. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 155 7. Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 308 In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528 The Commonwealth of Australia v Bogle (1953) 89 CLR 229 at 260cf Meagher and Gummow, Sir Owen Dixon's Heresy, Australian Law Journal, vol 54 (1980) 25, at p 29. 8. cf Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 190-192 9. (1953) 89 CLR 229 at 259. 10. eg, in D'Emden v Pedder (1904) 1 CLR 91 11. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129But see Victoria v The Commonwealth (1970) 122 CLR 353 at 396-397, per Windeyer J. 12. As stated in The Commonwealth v Bogle (1953) 89 CLR 229 at 259, per Fullagar J. 13. See eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 152The doctrine of the indivisibility of the Crown was described as "verbally impressive mysticism" by Latham CJ in Minister for Works (WA) v Gulson (1944) 69 CLR 338 at 350-351See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270-271, 288-290. For a discussion of the operation and development of the doctrine see Evatt, The Royal Prerogative (1987), pp 51-66. The difficulty of adapting concepts of sovereign immunity to States in a federation was noted by Souter J (dissenting) in Seminole Tribe of Florida v Florida (1996) 134 LawEd 2d 252 at 296, 324, 329. 14. See R v Burah (1878) 3 AppCas 889 at 904; Hodge v The Queen (1883) 9 AppCas 117 at 132; Powell v Apollo Candle Co (1885) 10 AppCas 282 at 289-290; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-12See also Farnell v Bowman (1887) 12 AppCas 643 at 649; Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 215 15. In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 518-519, 523; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12-13 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270-271, 287-291. See also Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107 at 116-117 16. (1985) 3 NSWLR 565. 17. Dao (1985) 3 NSWLR 565 at 597 18. Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 679-680(in the context of the imposition of taxation). 19. See also A v Hayden (1984) 156 CLR 532 at 540, 562, 580; Jacobsen v Rogers (1995) 182 CLR 572 at 591 20. See Attorney-General (Vict) v The Commonwealth (1945) 71 CLR 237 at 262 In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 520 Victoria v The Commonwealth (1971) 122 CLR 353 at 396

[286]

(1947) 74 CLR 31. 2. Cigamatic (1962) 108 CLR 372 at 378See also Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 231-232 Victoria v Commonwealth (1996) 187 CLR 416 at 497-499 3. (1947) 74 CLR 31. See also Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 Victoria v Commonwealth (1996) 187 CLR 416 at 497-499 4. See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83 Victoria v The Commonwealth (1971) 122 CLR 353 at 388, 402, 411-412, 424; The Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 128-129, 213-215, 254, 280-281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 205-206, 212-217, 225-227, 231-236, 245-247, 258-262; Leeth v The Commonwealth (1992) 174 CLR 455 at 483-485 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 227 5. See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 82-83the Tasmanian Dam Case (1983) 158 CLR 1 at 139-140, 213-215, 280-281; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 232 Re Lee; Ex parte Harper (1986) 160 CLR 430 at 453 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 228-230 6. R v Coldham; Ex parte Australian Social Welfare Union (1993) 153 CLR 297 at 313applied Re Lee; Ex parte Harper (1986) 160 CLR 430 at 432 7. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 216 Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 207, 217. 8. Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630cf Attorney-General (NSW) v Brewery Employés Union of NSW (1908) 6 CLR 469 at 584-585 The Commonwealth v New South Wales (1923) 33 CLR 1 at 46 Nelungaloo Pty Ltd v The Commonwealth (1952) 85 CLR 545 at 562-563 Texas v White (1868) 74 US 700 9. See Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 226-233 Victoria v Commonwealth (1996) 187 CLR 416 at 497-499cf In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528But see Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at p 549. 10. In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528cf Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at p 557; any such law might be subject to challenge as not being one for the peace, welfare and good government of the State in question.

Parties

Applicant/Plaintiff:

Next, the question arises as to the true operation and effect of The Commonwealth

Respondent/Defendant:

Cigamatic Pty Ltd

Cases Cited (129)

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority [1997] HCA 36

If you express the priority belonging to the Commonwealth as a prerogative of the Crown in right of the Commonwealth, the question is whether the legislative powers of the States could extend over one of the prerogatives of the Crown in right of the Commonwealth. If, as in modern times I think it is more correct to do, you describe it as a fiscal right belonging to the Commonwealth as a government and affecting its Treasury, it is a question of State legislative power affecting to control or abolish a federal fiscal right. It is not a question of the authority of the power of a State to make some general law governing the rights and duties of those who enter into some description of transaction, such as the sale of goods, and of the Commonwealth in its executive arm choosing to enter into a transaction of that description. It is not a question of the exercise of some specific grant of power which according to the very meaning of the terms in which it is defined embraces the subject matter itself: for it is not the plan of the Constitution to grant specific powers to the States over defined subjects. It is, I think, a question which cannot be regarded as simply governed by the applicability of the principles upon which Melbourne Corporation v The Commonwealth [5] depended. The Melbourne Corporation principle could have no application, for that principle proceeds on the footing that specific legislative powers conferred on the Parliament of the Commonwealth might be exercised to affect the prerogatives of the Crown in right of a State, as his Honour pointed out in In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [6] . The Melbourne Corporation principle states the limitation which is to be implied from the structure of the Constitution on the scope of the specific legislative powers of the Commonwealth. The principle, as stated by Mason J in Queensland Electricity Commission v The Commonwealth [7] , consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments [8] . The second element of the prohibition is necessarily less precise than the first; it protects the States against laws which, complying with the first element because they have a general application, may nevertheless produce the effect which it is the object of the principle to prevent. This principle is irrelevant to the scope of any State legislative power. 1. (1962) 108 CLR 372. 2. Brown v West (1990) 169 CLR 195 at 205see also Attorney-General v De Keyser's Royal Hotel [1920] AC 508 3. (1962) 108 CLR 372 at 378. 4. Cigamatic (1962) 108 CLR 372 at 377-378 5. (1947) 74 CLR 31. 6. (1947) 74 CLR 508 at 529-530. 7. (1985) 159 CLR 192 at 217. 8. Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 93

(1962) 108 CLR 372

(1990) 169 CLR 195

(1947) 74 CLR 31

(1947) 74 CLR 508

(1985) 159 CLR 192

(1982) 152 CLR 25

(1948) 76 CLR 1

(1965) 114 CLR 1

(1982) 150 CLR 169

(1988) 165 CLR 360

(1988) 165 CLR 411

(1989) 167 CLR 399

(1989) 168 CLR 461

(1990) 169 CLR 436

(1990) 171 CLR 182

(1904) 2 CLR 139

(1990) 171 CLR 1

(1984) 156 CLR 532

(1925) 36 CLR 170

(1932) 48 CLR 128

(1955) 94 CLR 489

(1964) 109 CLR 395

(1980) 142 CLR 237

(1990) 170 CLR 218

(1962) 107 CLR 46

(1977) 137 CLR 545

(1990) 169 CLR 482

(1904) 1 CLR 91

(1937) 56 CLR 657

(1995) 69 ALJR 667

(1942) 66 CLR 557

(1935) 54 CLR 262

(1985) 3 NSWLR 565

(1940) 63 CLR 278

(1974) 131 CLR 477

(1975) 132 CLR 164

(1997) 189 CLR 520

(1988) 166 CLR 79

(1918) 25 CLR 32

(1991) 171 CLR 635

(1995) 182 CLR 572

(1953) 89 CLR 229

(1971) 122 CLR 353

(1996) 189 CLR 51

(1969) 119 CLR 334

(1982) 149 CLR 282

(1970) 124 CLR 262

(1920) 28 CLR 129

(1986) 161 CLR 639

(1977) 139 CLR 362

(1923) 32 CLR 1

(1953) 88 CLR 168

(1973) 129 CLR 65

(1980) 145 CLR 457

(1951) 83 CLR 1

(1922) 31 CLR 421

(1995) 184 CLR 453

(1947) 74 CLR 408

(1951) 84 CLR 140

(1996) 186 CLR 630

(1928) 41 CLR 385

(1938) 59 CLR 170

(1931) 46 CLR 73

(1942) 65 CLR 373

(1959) 107 CLR 208

(1987) 162 CLR 427

(1990) 21 FCR 193

(1992) 39 FCR 420

(1992) 174 CLR 219

(1906) 4 CLR 488

(1946) 72 CLR 409

(1986) 161 CLR 254

(1996) 189 CLR 253

(1983) 158 CLR 535

(1987) 163 CLR 117

(1979) 145 CLR 172

(1970) 123 CLR 361

(1980) 144 CLR 13

(1981) 180 CLR 404

(1986) 5 NSWLR 646

(1977) 51 ALJR 463

(1991) 173 CLR 349

(1960) 105 CLR 303

(1966) 119 CLR 584

(1970) 123 CLR 89

(1992) 177 CLR 248

(1977) 138 CLR 399

(1989) 166 CLR 518

(1991) 28 NSWLR 443

(1926) 37 CLR 466

(1930) 43 CLR 472

(1943) 68 CLR 151

(1968) 117 CLR 253

(1977) 138 CLR 346

(1991) 174 CLR 379

(1987) 162 CLR 317

(1937) 58 CLR 618

(1984) 158 CLR 447

(1984) 154 CLR 311

(1996) 70 ALJR 611

(1991) 173 CLR 289

(1993) 176 CLR 433

(1996) 186 CLR 140

(1990) 27 FCR 22

(1993) 9 WAR 297

(1979) 145 CLR 330

(1992) 177 CLR 106

(1970) 122 CLR 353

(1944) 69 CLR 338

(1988) 166 CLR 1

(1994) 179 CLR 155

(1979) 145 CLR 107

(1945) 71 CLR 237

(1995) 184 CLR 188

(1996) 187 CLR 416

(1983) 158 CLR 1

(1992) 174 CLR 455

(1986) 160 CLR 430

(1993) 153 CLR 297

(1982) 153 CLR 168

(1908) 6 CLR 469

(1923) 33 CLR 1

(1952) 85 CLR 545

(1986) 160 CLR 572

(1987) 10 NSWLR 543

(1995) 183 CLR 245

(1995) 38 NSWLR 100

At a glance

Court

Decision date

Before

Source

Judgment (303 paragraphs)

Parties

Cases Cited (129)