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

4.1 The Lessor acknowledges that he is aware that the Lessee has leased the subject premises in the context of the function of the Lessee to provide residential dwelling units to the Commonwealth of Australia for occupation by personnel of the Australian Defence Services and the Department of Defence ("Defence Personnel").

4.2 The Lessor accordingly consents unconditionally to: -

4.2.1 the Lessee sub-letting the subject premises to the Commonwealth in pursuance of the provisions of the arrangement between the Lessee and the Commonwealth covering the function referred to in clause 4.1 hereof; and

4.2.2 the Commonwealth entering into a tenancy agreement or a series of agreements with Defence personnel in the form of "Uniform Tenancy Agreement for Service Members" currently in use for that purpose, but on condition that the term of any such sub-lease and any such tenancy agreement shall not exceed the term of this Lease less one (1) day.

The lease is a "residential tenancy agreement" within the meaning of s 3(1) of the Act. During the currency of such an agreement, the landlord is prohibited from entering the residential premises except as permitted by s 24 of the Act (s 24(5)). Section 24(1)(b) enacts that it is a term of every residential tenancy agreement that the landlord may enter the residential premises to inspect them, on not more than four occasions in any period of twelve months, provided the tenant has been given not less than seven days' notice on each occasion. However, a landlord may apply to the Tribunal to "make an order authorising the landlord or any other person to enter the residential premises" (s 24(4)).

The Act also makes it a term of every residential tenancy agreement that a copy of the key to the premises shall be given by the landlord to the tenant, except where the tenant consents to not being given a copy of the key or the Tribunal authorises a copy not to be given (s 29(1)(a), (c)). A landlord under such an agreement may also apply to the Tribunal to make an order requiring a copy of the key to be given to him or her (s 29(5)(c)). The Tribunal can only make such an order if it is satisfied that it is reasonable in the circumstances to do so (s 29(5)(c)).

The Hendersons seek orders against the Authority pursuant to the provisions of ss 24(4) and 29(5)(c) of the Act.

It is settled doctrine that the States have no constitutional power to bind the Commonwealth [76] . In the absence of a grant of power, express or implied, no polity within a federation has the power to bind another polity within that federation. Within their respective domains, the polities that make up a federation are regarded as sovereign. Because that is so, it is a necessary implication of the document that creates the federation that no polity in that federation can legislate for another. Federalism is concerned with the allocation of legislative power, and it is a natural and, to my mind, necessary implication of a federation that no polity can legislate in a way that destroys or weakens the legislative authority of another polity within that federation. As Isaacs J pointed out in Pirrie v McFarlane [77] :

[W]here by the one Constitution separate and exclusive governmental powers have been allotted to two distinct organisms, neither is intended, in the absence of distinct provision to the contrary, to destroy or weaken the capacity or functions expressly conferred on the other. Such attempted destruction or weakening is prima facie outside the respective grants of power. 1. Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 at 308, per Dixon J; In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528-531, per Dixon J; The Commonwealth v Bogle (1953) 89 CLR 229 at 259-260, per Fullagar J, with whom Dixon CJ, Webb, Kitto and Taylor JJ agreed; Cigamatic (1962) 108 CLR 372 at 376-378, per Dixon CJ; at 381, per Kitto J; at 389-390, per Menzies J; at 390, per Windeyer J; Victoria v The Commonwealth (1971) 122 CLR 353 at 373, per Barwick CJ; at 410, per Walsh J; Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 at 271-272, per Menzies J; at 286, 288, per Walsh J; Russo v World Services and Constructions Pty Ltd [1979] 1 NSWLR 330 at 334, per Hope JA. 2. (1925) 36 CLR 170 at 191 cited with approval by Dixon J in West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 682

Before the Engineers' Case [78] , this rule was regarded as a fundamental rule of constitutional law in this country, as applicable to the Commonwealth as it was to the States. But it is a rule that arises by implication from the nature of a federation. In the event of inconsistency with an express term of the document that creates the federation, it must give way. That was all that the Engineers' Case decided. This Court held in that case that, having regard to the affirmative grants of power to the Commonwealth which are contained in the Constitution, the States could not rely on the implication to resist the application of federal laws. Nevertheless, as Melbourne Corporation v The Commonwealth [79] demonstrated, the States are not wholly unprotected by the implication, for the Commonwealth cannot "make a law aimed at the restriction or control of a State in the exercise of its executive authority". Dixon J thought [80] that this modification of the Engineers principle of construction could "be plainly seen in the very frame of the Constitution".

1. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 2. (1947) 74 CLR 31 at 83. 3. Melbourne Corporation (1947) 74 CLR 31at 83.

It may be that Engineers was wrong in holding that the grant of affirmative powers to the Parliament of the Commonwealth was a sufficient indication of inconsistency with the implication that no polity in the Australian federation could bind another. Perhaps too little weight was given to the words "subject to this Constitution" in s 51. I do not think that this is the case. But it is too late in the history of the federation to re-visit that argument. If Engineers was a wrong turning, only a constitutional referendum can put the Constitution back on the true road. While Engineers departed from the early doctrine of the Court and decided that the Commonwealth can bind the States, it does not follow that the States are able to bind the Commonwealth. If Engineers had been decided the other way, I doubt that anybody would suggest that a State can bind the Commonwealth. However, the fact that legislation of the States cannot of its own force bind the Commonwealth does not mean that State legislation may not attach legal consequences to the activities of the Commonwealth Executive.

If the Parliament of the Commonwealth authorises the Executive Government to carry out an activity, its legislation, in the absence of an indication to the contrary, will be read as indicating that the Executive is to be bound by the common law rules and statutes applying in the States. The Constitution is framed on "the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute" [81] . The Constitution itself is informed by the common law as Sir Owen Dixon has explained [82] :

We do not of course treat the common law as a transcendental body of legal doctrine, but we do treat it as antecedent in operation to the constitutional instruments which first divided Australia into separate colonies and then united her in a federal Commonwealth. We therefore regard Australian law as a unit. Its content comprises besides legislation the general common law which it is the duty of the courts to ascertain as best they may The anterior operation of the common law in Australia is not just a dogma of our legal system, an abstraction of our constitutional reasoning. It is a fact of legal history. 1. Dixon, The Common Law as an Ultimate Constitutional Foundation, Australian Law Journal, vol 31 (1957) 240, at p 241. 2. "Sources of Legal Authority", reprinted in Jesting Pilate (1965) 198, at p 199.

That being so, it is axiomatic that, subject to a contrary legislative intention, the common law is binding on the executive activities of the Commonwealth government. If federal legislation authorises a Commonwealth instrumentality to buy land, sell goods or enter into contracts, the common law rules concerning those matters are taken as binding the Commonwealth unless the legislation indicates to the contrary. Similarly, federal legislation will be construed as indicating that Commonwealth executive activity is to be carried out in accordance with the existing statute law of the State unless the legislation indicates to the contrary. In such cases, State law may apply to the Commonwealth even when it takes the form of imposing affirmative duties on the Commonwealth government.

Moreover in some cases, quite apart from the operation of s 64 of the Judiciary Act, the terms of federal legislation may indicate that State law is to apply during the continuance as well as the creation of a relationship between the Commonwealth and a citizen. In such cases, if a question arises as to whether a particular State provision applies to the Commonwealth, the matter is resolved by recourse to s 109 of the Constitution.

A different area is reached, however, when State laws purport to alter rights acquired by the Commonwealth as the result of executive activity or to fetter an executive capacity or power of the Commonwealth where the source of authority for that activity, capacity or power is s 61 of the Constitution rather than federal legislation. These cases fall outside s 109 and are determined by the fundamental constitutional principle expounded in Cigamatic . That case decided that the States cannot legislate so as to abolish the Commonwealth's prerogative right to priority of payment "when in any administration of assets debts of equal degree due to the Crown and due to subjects of the Crown come into competition" [83] . Dixon CJ said [84] that "to treat those rights as subject to destruction or modification or qualification by the legislature of a State must mean that under the Constitution there resides in a State or States a legislative power to control legal rights and duties between the Commonwealth and its people". His Honour went on to say [85] :

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 [86] depended. In truth it imports a principle which if true would apply generally with respect to the legal rights of the Commonwealth in relation to its subjects. I do not speak of legal rights which are the immediate product of federal statute and so protected by s 109 of the Constitution. 1. Cigamatic (1962) 108 CLR 372 at 376 2. Cigamatic (1962) 108 CLR 372 at 377 3. Cigamatic (1962) 108 CLR 372 at 378 4. (1947) 74 CLR 31.

In my view, there can be no doubt that in this passage his Honour was declaring that the States have no power to alter legal rights or obligations existing between the Commonwealth and its subjects even though they are not the immediate product of a federal statute. Just as the States cannot alter the common law right of the Commonwealth to priority in the payment of its debts, so they cannot alter the existing contractual or proprietary rights and obligations of the Commonwealth in relation to its subjects that arise from the exercise of the executive power conferred by s 61 of the Constitution. It would be absurd to suppose that Dixon CJ, while denying that the States could alter the Commonwealth's common law priority in payment of the debt, accepted that the States could alter the common law rights of the Commonwealth that gave rise to the debt.

Kitto and Windeyer JJ agreed with the judgment of Dixon CJ. Menzies J said [87] that "the Commonwealth Constitution does not permit a State parliament to deprive the Crown in right of the Commonwealth of its prerogative rights". Owen J agreed [88] with the judgment of Menzies J. Although the terms of the judgment of Menzies J are narrower than those of Dixon CJ, logically it is impossible to see any ground for distinguishing between the common law prerogative rights of the Crown and the rights conferred by s 61 of the Constitution. That being so, the judgment of Dixon CJ should be regarded as the law of this country even if it is not strictly the ratio decidendi of Cigamatic .

1. Cigamatic (1962) 108 CLR 372 at 389 2. Cigamatic (1962) 108 CLR 372 at 390

It follows from Cigamatic that, once the executive power of the Commonwealth arising from s 61 of the Constitution has authorised a relationship creating rights and duties, a State has no power to alter that relationship even by a law that operates generally within the State. I do not think that the validity of this proposition turns on any distinction between the capacities of the Commonwealth and the exercise of them. It is not a distinction which I find illuminating in this constitutional context. Nor can I see anything in the judgment of Dixon CJ in Cigamatic which supports such a distinction.

The executive capacity of the Commonwealth can only mean its legal right or power to do or refrain from doing something. I cannot see any constitutional rationale for a doctrine that would hold, for example, that the States cannot prevent the Commonwealth from entering into a specific class of contract but can alter the legal rights and obligations of the Commonwealth and the subject once they have entered into a contract of that class. Moreover, the distinction between a capacity of the Commonwealth and its exercise is not easily drawn. If a State law prevents the Commonwealth from using its contractual right to forfeit a lease or terminate an employment, is the State law fettering a Commonwealth capacity or only the exercise of it?

In most cases, State law including the common law will govern the creation of a relationship between the Commonwealth and a subject even when the creation of the relationship arises from the Constitution's grant of executive power. If the Commonwealth chooses to enter into the relationship without negating the consequences of relevant State law, it necessarily submits to the State law governing the incidents of the relationship. But, for the reasons given by Dixon CJ in Cigamatic , once the Commonwealth has entered into such a relationship and created legal rights and duties in accordance with that State law, it is not open to the State to change their nature or effect. If the Commonwealth enters into a contract relying on the grant of executive power conferred by s 61 of the Constitution, a State has no power to change the consequences of that contract even by a law of general application.

Many activities of the Commonwealth government, however, do not result in relationships with the ordinary subjects of the Commonwealth. In some cases, these activities may concern only the Commonwealth and its servants and agents. In other cases, they may have no more than indirect or potential consequences for the subjects of the Commonwealth. If the activity falls within the terms of s 52 of the Constitution, the States plainly have no power over the activity. But many activities occur within the territorial boundaries of the States and outside the protection that s 52 gives to Commonwealth activities.

If the activity is authorised by a federal enactment, the case will be governed by s 109 of the Constitution. But much Commonwealth activity does not depend on statutory authorisation. In the ordinary course of administering the government of the Commonwealth, authority is frequently given to Commonwealth servants and agents to carry out activities in the exercise of the general powers conferred by the Constitution. Section 61 of the Constitution "enables the Crown to undertake 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" [89] . The provision of transport for officers of the Commonwealth and the carrying of Commonwealth property, for example, may depend upon no more than a combination of the powers conferred by ss 61, 81, 82 and 83 of the Constitution. Can a general State law validly regulate the Commonwealth transport system? Can it insist upon compulsory insurance for and periodic maintenance inspections of Commonwealth vehicles? Can it require the Commonwealth to use only drivers licensed by State law?

1. Barton v The Commonwealth (1974) 131 CLR 477 at 498

The judgment of Fullagar J in The Commonwealth v Bogle [90] , a judgment with which Dixon CJ, Webb, Kitto and Taylor JJ agreed, denies that the States have any power to control the Commonwealth. In Bogle [91] , Fullagar J said:

To say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental misconception. 1. (1953) 89 CLR 229 at 259-260. 2. (1953) 89 CLR 229 at 259.

If the answer to the question of construction be that the statute in question does purport to bind the Crown in right of the Commonwealth, then a constitutional question arises. The Crown in right of the State has assented to the statute, but the Crown in right of the Commonwealth has not, and the constitutional question, to my mind, is susceptible of only one answer, and that is that the State Parliament has no power over the Commonwealth. The Commonwealth - or the Crown in right of the Commonwealth, or whatever you choose to call it - is, to all intents and purposes, a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament. 1. Bogle (1953) 89 CLR 229 at 259

I do not think that there is any warrant for concluding that this passage is contrary to what Dixon CJ said in Cigamatic . To the contrary, I think that the judgment of Dixon CJ in Cigamatic is entirely in accord with what he had agreed to in Bogle and with what he had been saying ever since Uther [93] .

Moreover, properly understood, I think that the above passages are a correct statement of the law. I do not think that Fullagar J was saying that every act or omission of a Commonwealth servant or agent executed in the course of carrying out an activity on behalf of the Commonwealth is outside the law of the States. His Honour's statement was not directed to the aggregate of the legal and personal capacities enjoyed by the Commonwealth and its individual servants and agents. Rather, Fullagar J was directing himself to those extraordinary executive powers and capacities which the Constitution gives to the Commonwealth itself to carry out as a political sovereign in the federation. He was saying that the States cannot control or restrain the Commonwealth in the discharge of its powers or capacities arising under the Constitution. The States could not, for example, control or regulate the Commonwealth's capacity or power to engage in diplomatic relations with another country. In so far as a general State law purported to have that effect on a diplomat's work, it would be invalid. But that does not mean that a diplomat engaged on Commonwealth business can ignore State traffic laws.

Whether or not a general law of the State validly applies to a Commonwealth servant or agent acting in the course of his or her duties depends on a number of considerations, the chief of which are the nature of the Commonwealth activity upon which the servant or agent is engaged and the act or omission which the State law purports to regulate. In my opinion, however, the answer to the question whether a servant or agent of the Commonwealth Crown must obey a State law does not depend on any general proposition that the Commonwealth cannot authorise its servants or agents to perform their duties contrary to the penal laws of a State.

In determining whether a Commonwealth authorisation of executive activity is outside the law of a State, one naturally begins with the proposition that the Constitution is superimposed on a background of common law rules and principles [94] . Except where those rules and principles are inconsistent with the grant of executive power under the Constitution or a federal statute made pursuant to the Constitution, the carrying out of Commonwealth executive activity must conform with those rules. By the Bill of Rights 1688 and probably by the common law, the Crown had no power to authorise its servants to ignore the law. But in a federation that does not mean that the Executive Government of one polity of the federation is bound to obey the law of another polity in that federation. The rule that the Crown cannot give its agents any dispensation to ignore a statute was formulated for a unitary system of government. Just as the common law rule of the supremacy of Parliament had to be modified to accord with the Constitution, so must the rule that the Crown cannot authorise a breach of a law be modified to accord with the division of legal power between the Commonwealth and the States. In a federation, an anterior question must be answered before that rule has any operation. That question is, is there a law that the servants and agents of the relevant Sovereign must obey? It follows therefore that, in determining whether the Commonwealth Crown has power to authorise its servants or agents to disobey a State law, the first question is, is the State law binding on the Commonwealth Crown? Only when that question is answered can one determine whether the Commonwealth Crown can authorise its servants to ignore the law of a State.

If a State law attempted to discriminate against the exercise of an executive activity arising from the operation of s 61 of the Constitution, it would be plainly invalid for the reasons given by Dixon J in West v Commissioner of Taxation (NSW) [95] . On the other hand, a general law that merely regulates the manner or mode of performing an activity which a servant or agent of the Commonwealth carries out in the course of executing functions and duties arising from the operation of s 61 of the Constitution is unlikely to constitute an infringement of those extraordinary capacities or powers of the Commonwealth to which I have referred. Such laws are to be contrasted with State laws that purport to bind the Commonwealth itself in exercising the capacities and powers conferred by s 61 of the Constitution alone or in conjunction with other powers of the Commonwealth. State laws purporting to have that effect can only operate as interpretation clauses. They show that the State law is intended to apply to the Commonwealth. However, they can do so only to the extent that the Commonwealth submits to the law by express words or conduct or by inference from its silence. But that is all.

The Cigamatic doctrine does not apply to the Authority

At a very early stage of the argument in the present case, Gummow J pointed out to counsel for the Attorney-General for the Commonwealth that the status of the Authority for the purposes of Ch III of the Constitution does not mean that it is entitled to the benefit of the Cigamatic doctrine. Plainly, the Authority is the Commonwealth, or a person suing on behalf of the Commonwealth within the meaning of s 75(iii) of the Constitution [96] . But that does not carry with it the consequence that it is entitled to the benefit of the Cigamatic doctrine. In Maguire v Simpson [97] , Jacobs J held that the Commonwealth Trading Bank of Australia fell within the description in s 75(iii) but pointed out [98] that it did not follow that the bank was: "necessarily the Crown in right of the Commonwealth so that there is attracted to it any prerogative immunity of the Crown in respect of limitation of action." In Cigamatic , Dixon CJ emphasised [99] that that case did not concern the legal rights of the Commonwealth "which are the immediate product of federal statute and so protected by s 109 of the Constitution ".

1. State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 648-649 2. (1977) 139 CLR 362. 3. Maguire v Simpson (1977) 139 CLR 362 at 406 4. Cigamatic (1962) 108 CLR 372 at 378

This distinction indicates that Dixon CJ saw the Cigamatic doctrine as confined to those aspects of Commonwealth executive power which find their source in the provisions of the Constitution as opposed to those aspects of executive power that are sourced in the statutory powers of the Commonwealth. That does not mean that the Cigamatic doctrine is confined to protecting those aspects of executive power which the common law calls the prerogatives of the Crown. Under our Constitution, the executive power of the Commonwealth conferred by s 61 involves much more than the common law prerogatives of the Crown. Where the federal Parliament legislates in respect of executive power, however, the protection of the Commonwealth from State laws is to be found in s 109 of the Constitution, not in the Cigamatic doctrine. To so hold is simply to apply the basic constitutional principle laid down in Attorney-General v De Keyser's Royal Hotel [100] to the executive power generally. That principle is that, when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament.

1. [1920] AC 508 at 526, 537-540, 549-550, 561-562, 575-576; Brown v West (1990) 169 CLR 195 at 205

It may be - although I doubt it - that, if the Parliament creates a corporation so analogous with or under the control of a Department of State of the Commonwealth "as to be indistinguishable" [101] from that Department, the Cigamatic doctrine may apply. But with this possible exception, that doctrine has no application to legal rights of the Executive Government of the Commonwealth which are sourced in a federal statute. Except to the extent that those rights are protected by s 109 of the Constitution from State interference, State law may apply to them.

1. Repatriation Commission v Kirkland (1923) 32 CLR 1 at 8

When these principles are applied in the present case, the conclusion is inevitable that the Authority is not entitled to the benefit of the Cigamatic doctrine. The Authority is the immediate product of the Housing Authority Act, a federal Act. In accordance with that Act, its function is to provide "adequate and suitable housing" for members of the Defence Force, their families and certain other persons in order to meet the operational needs of the Defence Force and the requirements of the Department of Defence (s 5(1)). It is true that s 6 relevantly enacts:

The Authority shall endeavour to perform its function in a manner that:

(a) is in accordance with the policies of the Commonwealth.

(1) Except as provided in this section or as otherwise expressly provided by this Act, the Authority is not subject to direction by or on behalf of the Commonwealth Government.

(2) Where the Minister is satisfied that it is desirable in the public interest to do so, the Minister may, by notice in writing to the Authority, give directions to the Authority with respect to the performance of its function and the exercise of its powers.

(3) The Authority shall comply with any direction under sub-section (2).

However, it is impossible to conclude that the Authority is so analogous to or closely identified with any Department of State "as to be indistinguishable" [102] from that Department. What the Authority does is not dependent on executive power derived solely and directly from the Constitution. Its rights and liabilities are the immediate product of the statutory functions and powers of the Authority. By s 11(1) of the Housing Authority Act, the Authority is a body corporate which "may acquire, hold and dispose of real and personal property" and "may sue and be sued in its corporate name". By s 7, the Authority is given "power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions". By the same section, it is given, among other powers, the power to "purchase and otherwise acquire, and sell and otherwise dispose of" land and any interest in land, to build and repair houses, to rent out land and houses acquired by it or owned or held under lease by the Commonwealth and to enter into contracts.

1. Repatriation Commission v Kirkland (1923) 32 CLR 1 at 8

Nothing in the Housing Authority Act suggests that on the proper construction of those provisions they are not to be read in conjunction with the law of the State. Indeed, the very terms of ss 7 and 11 pre-suppose a background of State law which gives content to the functions and powers of the Authority. The rights acquired in pursuance of these provisions are protected from interference by inconsistent State laws by s 109 of the Constitution or not at all. They receive no protection from the Cigamatic doctrine.

For the reasons given by Dawson, Toohey and Gaudron JJ, however, s 109 has no application in the present proceedings.

Since the Authority is not entitled to the protection of the Cigamatic doctrine, s 64 of the Judiciary Act has no relevance to the present proceedings. But if that doctrine did apply in these proceedings, s 64 would not exclude its operation. Whether s 64 applies in proceedings depends upon whether there is a "suit" to which the Commonwealth is a party so that the rights of the parties "shall as nearly as possible be the same".

The Authority is plainly "the Commonwealth" within the meaning of s 64 [103] . However, the proceeding in the Tribunal is not a suit in a court. For the purpose of the present proceedings, the Tribunal is a quasi-legislative body. It makes, not declares rules. It has no power to finally declare the rights of the parties for the purpose of the proceedings. Instead, it is being asked to make orders, breaches of which give rise to offences against the Act. Those offences are prosecuted in the Local Court, or, with the consent of the Minister, in the Supreme Court of New South Wales in its summary jurisdiction (s 124(2), (3) of the Act).

Since the Tribunal is not a court exercising federal jurisdiction, s 64 does not apply to proceedings before it.

This is the return of an order nisi for prohibition directed to the respondents, the Residential Tenancies Tribunal of New South Wales (the Tribunal) and Mr and Mrs Henderson, prohibiting them from further proceeding with the hearing of the matter in the Tribunal.

The Tribunal is a body established by Pt 6 (ss 80-117) of the Residential Tenancies Act 1987 NSW (the Tenancies Act). The prosecutor, the Defence Housing Authority (the Authority), is established by s 4 of the Defence Housing Authority Act 1987 Cth (the Authority Act). Section 11(1) of that statute provides:

(c) may acquire, hold and dispose of real and personal property; and

Mr Henderson is lessor to the Authority of a property at Epping in New South Wales (the property) under a lease for a term of ten years to expire on 23 November 2002 (the lease). The Authority, in its submissions, refers particularly to cll 4.1 and 4.2 of the lease. These are as follows:

4.1 The Lessor acknowledges that he is aware that the Lessee has leased the subject premises in the context of the function of the Lessee to provide residential dwelling units to the Commonwealth of Australia for occupation by personnel of the Australian Defence Services and the Department of Defence ("Defence Personnel").

4.2 The Lessor accordingly consents unconditionally to: -

4.2.1 the Lessee sub-letting the subject premises to the Commonwealth in pursuance of the provisions of the arrangement between the Lessee and the Commonwealth covering the function referred to in clause 4.1 hereof; and

4.2.2 the Commonwealth entering into a tenancy agreement or a series of agreements with Defence personnel in the form of "Uniform Tenancy Agreement for Service Members" currently in use for that purpose, but on condition that the term of any such sub-lease and any such tenancy agreement shall not exceed the term of this Lease less one (1) day.

On its face, the lease falls within the broad definition of residential tenancy agreement in s 3(1) of the Tenancies Act. Section 24(1)(b) provides that it is a term of every residential tenancy agreement that the landlord may enter the residential premises to inspect them, on not more than four occasions in any period of twelve months, if the tenant has been given not less than seven days' notice on each occasion. On the application by a landlord under a residential tenancy agreement, the Tribunal may "make an order authorising the landlord or any other person to enter the residential premises" (s 24(4)). A landlord shall not, during the currency of the agreement, enter the residential premises except as permitted by s 24 (s 24(5)).

It is a further term of every residential tenancy agreement that a copy of the key required to open a lock which has been altered shall be given to the other party, except where the other party consents to not being given a copy of the key or the Tribunal authorises a copy not to be given (s 29(1)(a), (c)). On the application by a landlord under a residential tenancy agreement, the Tribunal may, if it is satisfied that it is reasonable in the circumstances to do so, make an order requiring a copy of a key to be given to the landlord (s 29(5)(c)).

In respect of the premises, Mr Henderson has sought against the Authority orders by the Tribunal under s 24(4) and s 29(5)(c).

The Authority seeks to prohibit further hearing of that application. It asserts a want of jurisdiction in the Tribunal. Four grounds are put forward. The first is that the Tenancies Act, in so far as it purports to apply to the Authority, is inconsistent with the Authority Act and therefore invalid by operation of s 109 of the Constitution. The second is that, in so far as the Tenancies Act purports to apply to the Authority, it is invalid because it deals with a matter placed by s 52(ii) of the Constitution within the exclusive power of the Parliament of the Commonwealth.

In my view, neither of these grounds is made out by the Authority. I agree with the reasons given for that conclusion in the joint judgment. I express, for myself, reasons why the third and fourth grounds also fail.

The third of the grounds put forward in the order nisi is that, in so far as the Tenancies Act purports to apply to the Authority, it is "invalid by reason of the implied constitutional immunity of the Commonwealth from the application of State legislation". The Authority thus relies upon the principles expounded in The Commonwealth v Cigamatic Pty Ltd (In liq) [104] .

The remaining ground concerns s 64 of the Judiciary Act 1903 Cth. Section 64 states:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. The submission is that s 64 has no application to the proceeding before the Tribunal because it is "not a court which exercises jurisdiction under section 77(iii) of the Constitution or section 39(2) of the Judiciary Act ".

Before turning to these grounds upon which prohibition is sought, it is convenient to consider the basis on which the Authority founds the jurisdiction of this Court in the matter. The Authority relies upon s 76(i) of the Constitution in combination with s 30(a) of the Judiciary Act. That is to say, it asserts, correctly, that this is a matter arising under the Constitution or involving its interpretation. The Authority also relies upon s 75(iii) of the Constitution. This confers original jurisdiction in all matters in which "the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party".

I accept that the Authority answers the description of the Commonwealth, or a person suing on behalf of the Commonwealth, within the meaning of s 75(iii) [105] . The result is to attract on this further basis federal jurisdiction and, in particular, the original jurisdiction of this Court. The contrary was not asserted.

1. State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 648-649

The status or character of the Authority for the purposes of Ch III of the Constitution does not determine its status or character for the application of the Cigamatic doctrine.

That doctrine occupies a particular place in the scheme established by the Constitution, whereby Ch I deals with The Parliament, Ch II with The Executive Government and Ch III with The Judicature. The jurisdiction of this Court, which is directly conferred by Ch III, cannot "be affected by an exercise of the authority of [a] State legislature" [106] . With respect to Ch I, s 109 establishes the supremacy of laws made by the Parliament. The Cigamatic doctrine protects the Executive Government and, in particular, directs attention to the content of the executive power of the Commonwealth. Section 61 of the Constitution states:

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.

Reference was made in argument to the prohibition imposed by s 114 of the Constitution upon the States raising or maintaining any naval or military force "without the consent of the Parliament of the Commonwealth". However, this is directed to a different concern than that of the Cigamatic doctrine. Section 114 supplements, in the federal system, the authority of the Legislature established by the English constitutional settlement whereby the Executive cannot raise or maintain a standing army in time of peace without consent of the Legislature [112] .

1. Bill of Rights 1688, 1 Will & Mary sess 2 c 2; Crown and Parliament Recognition Act 1689, 2 Will & Mary c 1; see Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466

A distinction between the executive and judicial arms of the government of the Commonwealth was drawn by Jacobs J in Maguire v Simpson [113] , with reference to the status and character of the Commonwealth Trading Bank. His Honour noted that s 75(iii) deals with cases where the Commonwealth in substance, though not necessarily in form, is suing or being sued and held that the Commonwealth Trading Bank fell within the description in s 75(iii). Jacobs J continued that it did not follow that the bank was [114] :

necessarily the Crown in right of the Commonwealth so that there is attracted to it any prerogative immunity of the Crown in respect of limitation of action. The latter subject matter and the subject matter of s 75(iii) are different. Section 75(iii) should be given a wide construction and effect: [Bank of NSW v The Commonwealth [115] ; Inglis v Commonwealth Trading Bank of Australia [116] ] per Barwick CJ. On the other hand the Crown prerogative does not generally extend as widely. Cf Rural Bank of New South Wales v Bland Shire Council [117] ; Rural Bank of New South Wales v Hayes [118] . 1. (1977) 139 CLR 362. 2. Maguire v Simpson (1977) 139 CLR 362 at 406 3. (1948) 76 CLR 1. 4. (1969) 119 CLR 334 at 335-336. 5. (1947) 74 CLR 408 at 417. 6. (1951) 84 CLR 140 at 146.

In the second of the Rural Bank Cases, Dixon, McTiernan, Williams and Kitto JJ had observed [119] :

The appellant is an independent body with powers and discretions of its own, empowered by s 48A of the Government Savings Bank Act 1906-1947 [(NSW)] (a section introduced by the Rural Bank of New South Wales (General Banking) Act 1947 NSW) to carry on general banking business in the State and elsewhere. Its functions are not those of a department of the executive Government of New South Wales. Consequently it is not entitled to claim for itself, as being within the concept of the Crown, an immunity belonging to the Crown either under the common law or under statutory provision. The issue in that case was whether the Landlord and Tenant (Amendment) Act 1948 NSW had bound the bank in respect of an action of ejectment brought by it to recover premises it had leased. In holding, with the other members of the Court, against the bank, Fullagar J said [120] : It cannot, to my mind, matter whether the statutory corporation "holds" the "real property", which it has "leased" to the defendants, for and on behalf of the Government of New South Wales or for and on behalf of anybody else. It is the legal owner of the property leased. It, and it alone, has the rights of a legal owner of that property. It alone could maintain an action for rent, or an action for breach of covenant, or exercise a right of re-entry. 1. Rural Bank v Hayes (1951) 84 CLR 140 at 146 2. Rural Bank v Hayes (1951) 84 CLR 140 at 153

The issue in the present case, with respect to the application of the reasoning in Cigamatic , is whether the relation of the Authority to the Executive Government of the Commonwealth is such as to identify it with that Executive Government and place it constitutionally in the same position with regard to any inapplicability of the Tenancies Act by reason of the Cigamatic doctrine.

The lease creates mutual rights and obligations between landlord and tenant, respectively Mr Henderson and the Authority. As I have outlined above, ss 24 and 29 of the Tenancies Act imply into their contractual relationship certain terms and provide for their enforcement through orders made by the Tribunal. The Authority complains that the statutory rights asserted by Mr Henderson against it in the Tribunal cut across or diminish the ordinary rights or immunities of the Authority arising under the general law from the relationship of lessor and lessee which was created consensually by the lease. The issue then is whether those rights or immunities for which the Authority seeks protection by denying the competence of the Tribunal in the matter are those of the Executive Government of the Commonwealth.

It is here that what was decided in The Commonwealth v Bogle [121] is important. The litigation concerned legislation of Victoria, South Australia and New South Wales but it is sufficient for present purposes to consider the Prices Regulation Act 1948 Vic [122] . This forbade the proprietor from increasing the amount charged for accommodation over the period of a person's occupation as a lodger. It was held that Commonwealth Hostels Ltd might not recover the amount of the excessive charges for certain board and lodging. Moreover, s 55 of the statute created an offence in respect of any person who contravened the statute or the delegated legislation made thereunder; it also deemed to have committed an offence certain officers of a corporation who knowingly authorised or permitted the commission of that offence by the corporation.

1. (1953) 89 CLR 229. 2. The terms under which the Commonwealth held the leases of the properties with which the litigation in Bogle was concerned do not fully appear from the report. No argument was presented that the property of the Commonwealth of which Commonwealth Hostels Ltd was in possession and control were "places acquired by the Commonwealth for public purposes" so that the Parliament had exclusive power to make laws with respect to them within the meaning of s 52(i) of the Constitution. See Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 674-676

Fullagar J held [123] that the legislation, on its face, obviously applied to every company which supplied board and lodging for reward. It was not to the point that the corporation had been formed at the instance of the Commonwealth, that the Commonwealth, through the responsible Minister, was in the position under the articles to control the company, that the ultimate financial interest was that of the Commonwealth, that the company was in possession and control of property of the Commonwealth, or that its activities in relation to the housing of immigrants were activities in which the Commonwealth was vitally interested.

Taylor J [124] distinguished Repatriation Commission v Kirkland [125] , a decision relied upon in the present case by the Authority. In 1917, acting pursuant to s 64 of the Constitution, the Governor-General in Council established a Repatriation Department as a department of State of the Commonwealth. At common law, distress might be levied upon the goods of a stranger found on the premises leased, but if the goods were the property of the Crown the landlord had no such right of distrain. In Kirkland , one issue was whether distraint lay in respect of goods of the Repatriation Commission. The Commission was created as a body corporate by s 7(2) of the Australian Soldiers' Repatriation Act 1920 Cth. However, Knox CJ and Starke J held that other provisions of the statute established that the Commission was "in the strictest sense a department of Government, or at all events so practically identified with it as to be indistinguishable" [126] .

1. Bogle (1953) 89 CLR 229 at 281-282 2. (1923) 32 CLR 1. 3. Repatriation Commission v Kirkland (1923) 32 CLR 1 at 8see also at 13, per Higgins J; at 20-21, per Rich J. See further as to the Federal Capital Commission established as a body corporate by s 5 of the Seat of Government (Administration) Act 1924 Cth, Pitcher v Federal Capital Commission (1928) 41 CLR 385 at 389, 393-394, 394-395.

In Bogle , after referring to these and other remarks made in Kirkland , Taylor J said [127] :

But none of these observations could have any application to the facts of the present case. It is true that the company's functions were for a time performed by a department of the Executive Government, but this does not constitute those functions when performed by the company functions of the Government, nor does the existence in the Minister of a power to control and direct the company's activities, or the fact that it may, to a considerable extent be dependent upon loans from public revenue, make such a conclusion possible. The plain fact is that it is a body with an independent existence and that it has a substantial measure of independent discretion in the performance of its functions and those functions are not characteristically functions of Government. 1. Bogle (1953) 89 CLR 229 at 282

The same may be said of the Authority. This is so even though (i) it owes its incorporation to its constituent statute, rather than to steps taken under the general law with respect to the incorporation of companies, and (ii) the function of the Authority is to provide "adequate and suitable housing" for members of the Defence Force and their families and certain other persons, in order to meet the operational needs of the Defence Force and the requirements of the Department (s 5(1)). Section 6 states:

The Authority shall endeavour to perform its function in a manner that:

(a) is in accordance with the policies of the Commonwealth; and

(b) is in accordance with sound commercial practice.

Section 43(1) provides that the Authority is a public authority to which Div 2 of Pt XI (ss 63D-63H) of the Audit Act 1901 Cth applies. Section 63H of that statute operates so as to require the Authority to prepare and submit to the Minister an annual report of its operations together with financial statements in respect of that year in such form as the Minister approves; it also requires that the Minister shall cause copies of such report and financial statements to be laid before each House of the Parliament (s 68H(3)). In so administering the Authority Act in accordance with the applicable Administrative Arrangements Order made by the Governor-General acting with the advice of the Federal Executive Council [128] , the Minister exercises the executive authority of the Commonwealth within the meaning of s 61 of the Constitution [129] . However, that is not to say that the Authority itself is placed constitutionally in the same position as the Executive Government of the Commonwealth with regard to the application to its activities of the Tenancies Act. The contrary is the case. The Authority performs its functions in its corporate form established by statute. The critical point is that there is no violation of s 61 in the legislature entrusting the Authority with those functions [130] . 1. The Authority Act is administered by the Minister for Defence under the Administrative Arrangements Order, Commonwealth of Australia Gazette, No S93, 11 March 1996. 2. Repatriation Commission v Kirkland (1923) 32 CLR 1 at 21see also Radio Corporation Pty Ltd v The Commonwealth (1938) 59 CLR 170 at 191-192 3. See Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 117-119 Richardson, The Executive Power of the Commonwealth in Zines (ed), Commentaries on the Australian Constitution (1977) 50, at pp 82-85.

(1) Except as provided in this section or as otherwise expressly provided by this Act, the Authority is not subject to direction by or on behalf of the Commonwealth Government.

(2) Where the Minister is satisfied that it is desirable in the public interest to do so, the Minister may, by notice in writing to the Authority, give directions to the Authority with respect to the performance of its function and the exercise of its powers.

(3) The Authority shall comply with any direction under subsection (2).

(4) Where the Minister gives a direction to the Authority under subsection (2), the Authority shall include particulars of the direction in its annual report.

In Cigamatic [131] , Dixon CJ emphasised that he was dealing with the privileges or immunities of "the Commonwealth in its executive arm" and that he was not speaking of the legal rights of the Commonwealth "which are the immediate product of federal statute and so protected by s 109 of the Constitution " [132] . Judgment in Australian Coastal Shipping Commission v O'Reilly [133] was delivered a month before the commencement of the argument in Cigamatic . O'Reilly illustrates the above proposition in Cigamatic concerning s 109. It decides that the Parliament may establish a corporation and provide that it not be subject to taxation under the law of a State such as stamp duty legislation. The point is further illustrated in the present case by s 63 of the Authority Act. This provides, with certain qualifications, that the Authority is not subject to taxation under the laws of a State.

1. (1962) 108 CLR 372 at 378. 2. The particular privilege or prerogative right at issue in Cigamatic later was qualified by s 3(a) of the Crown Debts (Priority) Act 1981 Cth, which subjected the Commonwealth Crown to any State law relating to the order in which debts or liabilities of a body were to be paid or discharged. 3. (1962) 107 CLR 46.

What the Authority Act does not do is to confer upon the corporation, so constituted by the Parliament, an immunity from the operation of State legislation such as the Tenancies Act. That omission is determinative of the present litigation. In constituting the Authority and vesting it with its own legal personality, the legislature was not adding to the executive arm of the Commonwealth. It is for the Governor-General in Council, acting pursuant to s 64 of the Constitution, to establish any new departments of State of the Commonwealth.

As stated earlier in these reasons, s 61 provides that the executive power of the Commonwealth extends to the execution and maintenance of the laws of the Commonwealth. The Minister responsible for the administration of the Authority Act thereby is involved in the execution and maintenance of the laws of the Commonwealth. However, as stated above, that does not mean that the Cigamatic doctrine is engaged. The Authority is the immediate product of federal legislation. The rights and liabilities created by the Authority in respect of third parties such as Mr Henderson are the immediate product of the exercise of the statutory functions of the Authority. Section 109 of the Constitution protects those rights and liabilities against such destruction, modification or qualification by State law as amounts to inconsistency in the constitutional sense.

The Cigamatic doctrine is not necessarily confined to the abridgment or abolition of those aspects of executive authority which in England and in the colonies before federation would have been classified as prerogative preferences, immunities and exceptions enjoyed by the Crown and denied to others. In a federal system, which need not be a monarchical system, more is involved. What is of present importance is that, save perhaps for the exceptional case where the Parliament creates an entity so practically identified with a department of State of the Commonwealth "as to be indistinguishable" [134] , the Cigamatic doctrine has no application to legal rights which are the immediate product of federal statute and so protected by s 109 of the Constitution. To say that is to say no more than what was said by Dixon CJ in Cigamatic [135] .

1. Repatriation Commission v Kirkland (1923) 32 CLR 1 at 8 2. (1962) 108 CLR 372 at 378.

This conclusion is supported by what follows from a brief consideration of the use in Australia of statutory corporations to exercise what otherwise might simply have been considered as governmental functions or an extension thereof into commercial activity [136] . Such corporations were in widespread use in the colonies before federation and before and after the public service was placed on its modern statutory footing [137] . In New South Wales, in the period 1856-1900, over fifty statutes provided for, constituted or reconstituted statutory bodies performing a wide variety of functions [138] . In some instances the governing bodies of these corporations included persons with special expertise drawn from outside the public service, or persons elected by local government bodies [139] . Other statutory corporations may have been designed to remove areas of administration from direct interference by the executive [140] . Another objective appears to have been to afford to third parties dealing with or damaged by such bodies direct and full rights in contract and tort which then would not have been available against the Crown [141] . For example, in Victoria, the tort immunity of the Crown was not abolished until the enactment of s 4 of the Crown Proceedings Act 1955 Vic. Earlier, Harrison Moore had observed [142] that the exclusion of liability in tort was tolerable only because "the more important public utilities and services undertaken by the State [had] been committed to statutory corporations, subject in the main to the ordinary law".

1. 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.

This Court remarked in Deputy Commissioner of Taxation v State Bank (NSW) [143] that, since the nineteenth century, government owned and controlled instrumentalities with independent corporate personalities had carried on activities including the supply of certain types of goods and services on commercial terms. Earlier, in Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employés Association (the Railway Servants Case) [144] , Griffith CJ observed that the conduct of railways by such corporations had been "for the convenience as well of management as of the assertion and enforcement of contractual rights in respect of the commercial transactions involved in the transport of goods and passengers".

1. (1992) 174 CLR 219 at 230-231. 2. (1906) 4 CLR 488 at 535.

Such statements indicate that the widespread use in Australia of statutory corporations to conduct what in other hands could have been seen as no more than ordinary commercial transactions has been to assist rather than to detract from the position of those dealing with such bodies. Such corporations may bear statutory obligations akin to those of the Executive Government with respect to such matters as financial accountability to and dependence upon the legislature. This is manifested in the present case by the application of the provisions of the Audit Act to which I have referred. However, this financial accountability of the Authority does not mean that the Parliament in creating such a body necessarily imparted to it the preferences, immunities and exceptions, including that zone of immunity conferred by the Cigamatic doctrine, which are enjoyed by the Executive Government and denied to citizens and corporations in their dealings inter se. The contrary is the case [145] .

1. See Lebron v National Railroad Passenger Corporation (1995) 130 LawEd 2d 902 at 922, where reference is made to the statement in Bank of the United States v Planters' Bank of Georgia (1824) 22 US 904 at 908that, whilst the federal government held shares in the first Bank of the United States, "the privileges of the government were not imparted by that circumstance to the bank".

As to the content of the Cigamatic doctrine, I would say only the following. First, like McHugh J, and for the reasons given by his Honour, I do not find illuminating in this context criteria which turn upon any distinction between the capacities of the Commonwealth and their exercise.

Secondly, when one speaks of a State law which purports to "bind" the Commonwealth, as did Fullagar J in Bogle [146] with respect to the Prices Regulation Act 1948 Vic, the law in question, as was the case with s 55 of that statute, may establish a regulatory regime enforced by criminal sanctions as well as civil remedies. It may be one thing to expose one element in the federation to civil action by another and, indeed, s 75(iii) and (iv) provides for federal jurisdiction in such matters, but it is another thing altogether to expose an element in the federation to criminal sanction.

Further, Pirrie v McFarlane [147] may be understood as a case where the State legislation bound, by criminal sanction, individual members of the Defence Force rather than the Executive Government of the Commonwealth. On that footing, the case was correctly decided. It would be to enter into another dimension to conclude that a State might create a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth itself of its Executive Government [148] .

1. (1925) 36 CLR 170. 2. cf Cain v Doyle (1946) 72 CLR 409 at 419, 420-421, 425; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 265 Bropho v Western Australia (1990) 171 CLR 1 at 26-27 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 268-271, 275-278, 293-294.

However, in Pirrie v McFarlane , Isaacs J pointed out [149] , that the Royal Australian Air Force was raised, maintained and organised not by the Executive Government, but by legislation. This was in conformity with the constitutional settlement effected in England by the Bill of Rights. It would follow that such rights and immunities as officers of the Defence Force may have enjoyed were the immediate product of federal statute, and that the Cigamatic doctrine had no operation.

Thirdly, Fullagar J used the phrase "become affected by State laws" [150] both to identify what had been said by Dixon J in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd [151] and In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [152] and in contradistinction to what was involved with a State law which purported to "bind" the Commonwealth.

1. Bogle (1953) 89 CLR 229 at 260 2. (1940) 63 CLR 278 at 308. 3. (1947) 74 CLR 508 at 528.

Fourthly, the examples given by Fullagar J and Dixon J of permissible affectation of the Commonwealth by State law were of legislation which enacted or qualified in some respect the common law of personal obligations with respect to such matters as the formation, performance and discharge of contracts. The Commonwealth lives and moves within the Australian common law [153] . The Cigamatic doctrine accepts that (i) the common law may be qualified or replaced by State legislation with a general operation in respect of certain kinds of transaction or business activity, and (ii) such State legislation may have an impact upon the activities of the Executive Government of the Commonwealth consistently with the principle that the execution and maintenance of Commonwealth law is the exclusive domain of the Commonwealth [154] . In Farley [155] , Dixon J distinguished between this general body of law as it affected dealings by the Executive Government of the Commonwealth in the course of the orderly administration of government and State laws which would detract from or adversely affect the very governmental rights of the Commonwealth, in the exercise of which it might engage in such transactions.

1. cf Uther (1947) 74 CLR 508 at 521 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-567 2. The Commonwealth v Colonial Combing, Spinning & Weaving Co Ltd (1922) 31 CLR 421 at 440cf as to a law of the Commonwealth which establishes a body which derives its powers from the complementary operation of federal and State legislation: R v Duncan; Ex parte Australian Iron & Steel Pty Ltd (1983) 158 CLR 535 Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 131 3. (1940) 63 CLR 278 at 308.

The distinction is further illustrated by what was at issue in Uther and Cigamatic . This was the destruction, modification or qualification by New South Wales law of a fiscal right of pre-eminence otherwise enjoyed by the Commonwealth Treasury in insolvent administrations conducted under the Companies Act 1936 NSW. The taxpayers in these cases had legal personality only by reason of their incorporation under the law of New South Wales. They carried on business activities which resulted, by operation of taxation laws of the Commonwealth, in their incurring debts to the Commonwealth. In respect of those debts, the prerogative, found in s 61 of the Constitution, conferred a priority in the subsequent insolvent administrations under State law. Cigamatic overruled Uther on that point and held that the State law was ineffective to displace the assertion and exercise of that prerogative right to priority.

I turn to consider s 64 of the Judiciary Act. It is true that in many instances s 64, alone or in combination with s 79 and s 80, may operate to deny what otherwise would be the operation of the Cigamatic doctrine. The significance of s 64 was not touched upon in Cigamatic itself, a point made by Mason J and Jacobs J in Maguire v Simpson [156] . But s 64 will not always provide an answer to reliance upon Cigamatic . Much will depend upon the meaning of the phrase "the rights of parties shall as nearly as possible be the same" (emphasis added) [157] . Further, there must be a "suit", that is to say an action or original proceeding to which "the Commonwealth" or "a State" is a party.

1. (1977) 139 CLR 362 at 402, 403-404. 2. See Finn, Claims Against the Government Legislation in Finn (ed), Essays on Law and Government, vol 2, The Citizen and the State in the Courts (1996) 25, at pp 40-43.

In the present dispute, the Authority may be classified as "the Commonwealth" within the meaning of s 64 [158] . However, s 64, like s 79 and s 80, is only applicable in a proceeding in which a court is exercising federal jurisdiction. This was emphasised by Stephen J in China Ocean Shipping Co v South Australia [159] . In so far as they suggested to the contrary, the submissions for Mr Henderson should be rejected.

1. Maguire v Simpson (1977) 139 CLR 362 at 398 2. (1979) 145 CLR 172 at 223-224.

The proceeding in the Tribunal which gives rise to the present litigation is not one before a State court which is exercising federal jurisdiction with which it has been invested pursuant to s 77(iii) of the Constitution and s 39(2) of the Judiciary Act. Rather, as was conceded, and indeed asserted, by Mr Henderson, the Tribunal is an administrative body. The "orders" which it makes under provisions such as s 24(4) and s 29(5) of the Tenancies Act are attended by the penalties provided by a combination of ss 115 and 125(1). Proceedings for these offences are dealt with not by the Tribunal but by a Local Court constituted by a magistrate sitting alone, or, with the consent of the Minister, by the Supreme Court of New South Wales in its summary jurisdiction (s 124(3)) [160] .

1. See R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 412, per Walsh J.

The point is that, whilst in some circumstances the Cigamatic doctrine may be engaged in the course of a proceeding that is administrative in nature and which is conducted before a body which is not exercising federal jurisdiction, that consideration is not determinative of the present litigation.

The order nisi should be discharged not because (as is the case) s 64 of the Judiciary Act has no application to the proceeding before the Tribunal, but because the implied constitutional immunity of the Commonwealth established by the Cigamatic doctrine has no application to the operation of the Tenancies Act upon the rights and immunities of the Authority as lessee under the lease.

I agree with the orders proposed in the joint judgment.

An order nisi for a writ of prohibition is before the Court. If made absolute it would restrain the respondents from further proceeding in a matter before the Residential Tenancies Tribunal of New South Wales (the Tribunal - the first respondent). The issues raised go "deep in the nature and operation of the federal system" [161] .

1. The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 at 377, per Dixon CJ.

For the respondents, and for all of the States of Australia who have intervened to support them, this was the opportunity, long awaited, to expunge from the Court's jurisprudence a suggested constitutional "heresy" [162] of Dixon CJ. That "heresy" concerns the scope of the immunity from the binding force of State statutes of the Commonwealth and its Executive Government [163] .

1. Meagher and Gummow, Sir Owen Dixon's Heresy Australian Law Journal, vol 54 (1980) 25; see also Zines, Sir Owen Dixon's Theory of Federalism, Federal Law Review, vol 1 (1965) 221; Zines, The High Court and the Constitution, 4th ed (1997), pp 363-364. 2. In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 529-530, per Dixon J (dissenting); The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 at 377-378, per Dixon CJ with the concurrence of Kitto and Windeyer JJ.

On the way to the resolution of this issue, and affecting its outcome in this case, lie many questions. These include whether a federal statutory authority, established by the federal Parliament, is "the Commonwealth" for relevant purposes; whether the State law which is challenged impermissibly intrudes into an area of law-making reserved, by s 52(ii) of the Constitution, exclusively to the federal Parliament; and whether (alternatively) the State law is invalid under s 109 of the Constitution because it is inconsistent with the law of the Commonwealth which created the federal statutory authority. After these constitutional difficulties, as necessary, are resolved, there remain a number of questions concerning the application of the Judiciary Act 1903 Cth.

Commentators have complained about the way in which this Court has decided problems of this character without overt regard to "considerations of practical political, social and economic utility" [164] . Even those sympathetic to the Court's ordinary techniques of reasoning contend that, "in the law on Commonwealth-State relations", "verbal subterfuge" and "formulary" rather than candour and predictive criteria have marked the course of decisional authority [165] . Some attempt was made by the parties and interveners to expound alternative theories of the Australian federation to support their respective arguments. But for the most part, such arguments quickly claimed refuge in the opinions of the Justices in situations said to be analogous: hoping to derive from them authority, or at least assistance, by analogous reasoning, to explain how, in 1996, a federal statutory authority was to relate (as other persons and corporations must) to a State law of general application.

1. Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at p 524; cf Gummow, The Nature and Operation of Prerogative Powers in the Federal System. The Commonwealth of Australia v Cigamatic Pty Ltd, Sydney Law Review, vol 4 (1964) 435. 2. Lane, Some Principles and Sources of Australian Constitutional Law (1964), p 258.

Proceedings in a State tribunal prompt a federal challenge

Like many important constitutional disputes, this one arises out of seemingly trivial circumstances. In November 1992, the prosecutor, the Defence Housing Authority (DHA), established by the Defence Housing Authority Act 1987 Cth (the DHAA) (s 4), entered into a lease with the then owner of a home unit in Epping in the State of New South Wales. In accordance with the standard terms of such a lease, the owner, as lessor, consented unconditionally to DHA's sub-letting the property to the Commonwealth and to the Commonwealth's entering into further tenancy agreements with defence personnel according to the form of a "Uniform Tenancy Agreement for Service Members". This form was produced by DHA to the lessor.

Dr A T Henderson purchased the freehold of the premises from the lessor subject to the foregoing lease. The lease had been registered under the Real Property Act 1900 NSW, being a lease of ten years duration [166] . Dr Henderson and his wife Dr K Henderson (the second respondents) thereafter received the rent in accordance with the lease. However, they subsequently sought to enter the premises for the purpose of inspection. They relied upon the provisions of s 24 of the Residential Tenancies Act 1987 NSW (the RTA). They later informed the Tribunal that they wished to amend their application to seek an order requiring DHA to give them a copy of the key to the premises, also in accordance with the RTA (RTA, s 29(5)(c)). They made similar applications in respect of three other investment properties leased to DHA. However, the Epping property represents their test case. DHA did not agree to the request. Accordingly, on 30 November 1995, the second respondents sought orders from the Tribunal under the RTA (s 85(1)) that DHA was bound by the RTA under s 4 of that Act; and that they be allowed to enter and inspect the premises and to have a copy of the key.

1. Real Property Act 1900 NSW, s 36. The lease (I 159755) commenced on 24 November 1992 and will terminate on 23 November 2002.

This application elicited a letter from the solicitors for DHA disputing the jurisdiction of the Tribunal. The letter attached earlier correspondence with the Tenancy Commissioner, established by the RTA (s 117A). It expressed doubt about the application of the RTA to the typical lease agreement entered into by DHA. In March 1996, DHA indicated to the second respondents that it was so busy preparing for the new government that it would accede to their application but without accepting the jurisdiction of the Tribunal. This was unsatisfactory to the second respondents. They asserted a right afforded them by law, not a privilege extended by grace and favour of the busy DHA.

The Tribunal having fixed the application for hearing, DHA, in April 1996, obtained an order nisi for prohibition from McHugh J to determine the jurisdiction of the Tribunal. The jurisdiction of this Court, thereby invoked, included that afforded by the Constitution, s 75(iii). This confers original jurisdiction "[i]n all matters [i]n which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party". DHA has steadfastly maintained, for this and other purposes, that it is relevantly "the Commonwealth". It asserts that it is entitled to the Commonwealth's immunities and legal protections.

1. The RTA, in so far as it purports to apply to DHA, is inconsistent with the DHAA and is therefore invalid under s 109 of the Constitution.

2. The RTA, in so far as it purports to apply to DHA, is invalid because it deals with a matter within the exclusive power of the Federal Parliament within s 52(ii) of the Constitution.

3. The RTA, in so far as it purports to apply to DHA, is invalid by reason of the implied constitutional immunity of the Commonwealth from the application of a State law such as the RTA.

4. Section 64 of the Judiciary Act 1903 Cth has no application to a proceeding before the Tribunal because the latter is not a court which exercises jurisdiction pursuant to s 77(iii) of the Constitution or s 39(2) of the Judiciary Act.

Pending the outcome of these proceedings, the application before the Tribunal was stayed. The Tribunal did not submit [167] . It maintained before this Court that it had jurisdiction. In this, it was supported by the second respondents. Some of the States went so far as to offer submissions supporting the Tribunal's jurisdiction. Others confined their submissions to matters of legal principle. All attacked, and if necessary sought leave to have over-ruled, the broad interpretation of the Commonwealth's immunity from State laws expressed in The Commonwealth v Cigamatic Pty Ltd (In liq) [168] . DHA and the Attorney-General for the Commonwealth (intervening) supported each of the constitutional and statutory challenges to the jurisdiction of the Tribunal. They resisted the application to reopen the Cigamatic principle which has stood for thirty-five years. They asserted that it was a doctrine which "best serves the needs of Australian federalism" [169] .

1. cf R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 2. (1962) 108 CLR 372. 3. Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 598, per McHugh JA.

A central function of organised government is the armed defence of the polity and its people. This necessarily implies the raising of armed forces, their organisation and command and provision to feed, transport and house them. The unwanted billeting of soldiers by citizens was one of the chief complaints against King George III mentioned in the United States Declaration of Independence [170] . The Imperial authorities, and the Australian colonies, learnt from the experience of the American revolution. In Australia, from the start, they provided barracks where naval and military personnel were housed. Such was the position when, in accordance with s 69 of the Constitution, after the establishment of the Commonwealth, certain departments of the public service of each State (formerly colony), including "[n]aval and military defence", were transferred to the Commonwealth. Other departments so transferred were "[p]osts, telegraphs, and telephones"; "[l]ighthouses, lightships, beacons, and buoys"; "[q]uarantine"; and "departments of customs and of excise in each State". Only the last were "transferred to the Commonwealth on its establishment" [171] .

1. "He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has [given] his Assent to their acts of pretended Legislation [f]or quartering large bodies of armed troops among us ". 2. The other departments were to be transferred "[on] a date or dates to be proclaimed by the Governor-General".

In this way, the provision of housing to the naval and military defence forces of the Commonwealth was a responsibility which passed to the Commonwealth soon after its establishment. Ample general power to provide for such housing by federal legislation was afforded by the Constitution (eg, ss 51(vi)). Provision for serving and former officers of the defence forces became the subject of early federal legislation [172] . Responsibility for administering such legislation was shared by a number of departments.

1. eg, War Service Homes Act 1918 Cth, subsequently Defence Service Homes Act 1918 Cth.

Immediately before the passage of the DHAA, defence housing was basically the responsibility of the Industrial Division of the Defence Department. However, four other departments [173] were involved in aspects of its provision. They, in turn, relied upon the assistance of State housing authorities [174] . Concern about the efficiency of these arrangements, and their capacity to respond with "effective decision-making and prompt action" [175] , led to the establishment of an investigatory task force. Its report led, in turn, to the DHAA. The Minister explained: "There must be a single organisation established which is dedicated to management of Defence housing and free from bureaucratic controls [176] ." The DHAA was to charge the Defence Department commercial rents. Typically, it would lease a stock of housing from persons such as the second respondents. The Defence Department (the Commonwealth) would "on-lease" the premises to defence personnel. They would be charged rent at levels which took into account the fact that the provision of housing was to continue to be a condition of their service [177] . Without objection, DHA placed before the Court materials explaining how the DHAA came to be passed and its purposes. Tedious though it may be, it is necessary to examine the provisions of the DHAA with care, bearing in mind the prosecutor's assertion that DHA is relevantly a "manifestation" or "emanation" of the Commonwealth.

1. Department of Housing and Construction; Department of Local Government and Administrative Services; Department of Finance; and Department of Territories. 2. Task Force on Australian Public Service and Defence Force Housing Programs, Interim Report of Program Effectiveness Review (1985), pp 49-50. 3. Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence, House of Representatives, Parliamentary Debates (Hansard), 18 March 1987, p 1052. 4. Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence, House of Representatives, Parliamentary Debates (Hansard), 18 March 1987, p 1053. 5. Second Reading Speech of Defence Housing Authority Bill 1987 (Cth) by Minister for Defence Science and Personnel, House of Representatives, Parliamentary Debates (Hansard), 27 October 1987, p 1516.

The purposes of DHA appear in the DHAA itself. By that Act, DHA is established (DHAA, s 4). It is created as a body corporate with perpetual succession, a common seal, a capacity to acquire, hold and dispose of real and personal property and a capacity to sue and be sued in its corporate name (DHAA, s 11(1)). Its function is to provide "adequate and suitable housing" for defence and related personnel (DHAA, s 5(1)). It is obliged to do so "as the Minister, by notice in writing given to the Authority, directs is necessary to meet the operational needs of the Defence Force and the requirements of the Department" (DHAA, s 5(2)). DHA is required to "endeavour to perform its function in a manner that: (a) is in accordance with the policies of the Commonwealth; and (b) is in accordance with sound commercial practice" (DHAA, s 6). To this end, a very wide range of powers is conferred on DHA for the performance of its activities, including the purchase and other acquisition and disposal of land and houses; renting out, managing and controlling land and houses; determining and collecting rents; evicting tenants; purchasing, hiring and disposing of plant, machinery, equipment and other goods; entering into contracts; appointing agents and attorneys; engaging consultants; forming and participating in the formation of companies; entering partnerships and joint ventures; accepting gifts, grants, bequests and devises made to it and acting as trustee of money; and otherwise doing everything incidental to any of its powers (DHAA, s 7(1)).

An indication of the large measure of independence afforded to DHA may be seen in the full range of specified powers and in the fact that DHA's obligation to secure the written approval of the Minister for a contract entered by it does not arise unless such contract involves the payment by it of an amount exceeding $6 million (DHAA, s 7(2)). Limitations are placed on the formation of companies and partnerships or participation in joint ventures without written approval of the Minister (DHAA, ss 8, 9, 10). Otherwise DHA's powers are extremely wide. Its constitution follows the typical pattern of an independent statutory authority of the Commonwealth. Subject to any express provisions for ministerial control such bodies must act with independence in the discharge of their statutory functions, always remaining within their statutory powers [178] . Unless otherwise exempted, they must conform to applicable law, including State law, affecting their operations [179] .

1. Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 428-429 Singer v Statutory Offices Remuneration Tribunal (1986) 5 NSWLR 646 at 652, 658. See also Green v Daniels (1977) 51 ALJR 463 at 467 2. Waters v Public Transport Corporation (1991) 173 CLR 349 at 367-370

The DHAA contains express provisions for the operation of DHA. It is obliged to prepare a "corporate plan" (DHAA, s 27) and a "financial plan" (DHAA, s 28). The latter is to be prepared having regard to "objectives and policies of the Commonwealth Government known to it, and any directions given to it by the Minister" (DHAA, s 28(2)(a)), and "the expectation of the Commonwealth that it will pay a reasonable dividend on its capital" (DHAA, s 28(2)(e)). The corporate plan must be given to the Minister with copy of the financial plan (DHAA, s 29). The Minister is afforded specific power, by notice in writing to DHA, to direct it to vary the corporate plan or financial targets in the financial plan (DHAA, s 30(1)). When given such a direction with reasons, DHA is obliged to conform (DHAA, s 30(3)).

Although generally DHA is not to be subject to direction "by or on behalf of the Commonwealth Government" (DHAA, s 31(1)), exceptional power is afforded to the Minister where "satisfied that it is desirable in the public interest to do so", by notice in writing, to "give directions to the Authority with respect to the performance of its function and the exercise of its powers" (DHAA, s 31(2)). Where DHA receives such a direction it must comply (DHAA, s 31(3)). It must also include particulars of the direction in its annual report (DHAA, s 31(4)). If it complies with a direction, and suffers financial detriment as a result, it is entitled to be reimbursed by the Commonwealth to that extent (DHAA, s 32(1)).

Detailed provisions are made for the finances of DHA. These include the payment of dividends to the Commonwealth (DHAA, s 35) and borrowings from the Commonwealth and others (DHAA, ss 36, 37), including in currency other than Australian currency (DHAA, s 37(3)). Provision is also made for the Treasurer, on behalf of the Commonwealth, to enter into contracts guaranteeing the payment by DHA of the moneys borrowed (DHAA, s 38). The chief executive of DHA is titled "The Managing Director" (DHAA, s 45). This officer is appointed by DHA (DHAA, s 47; see also s 54). However, the remuneration of this officer is to be determined by the Remuneration Tribunal established under federal legislation (DHAA, s 50; see also Remuneration Tribunal Act 1973 Cth). In addition to the Managing Director, DHA comprises persons appointed by the Governor-General falling within specified categories (DHAA, ss 12(1), 14(1)).

Three miscellaneous provisions should be noted. A broad power is conferred on DHA to determine the rent payable for any house let or leased "having regard to the prevailing market rents for houses" (DHAA, s 59(1)). This large discretion is subject to the general obligation to perform the functions of DHA in accordance with the policies of the Commonwealth and sound commercial practice and, where relevant, as directed by the Minister (DHAA, ss 6 and 31(3) referred to in s 59(1)). DHA is obliged to establish, in writing, "the principles in accordance with which it proposes to determine rents" (DHAA, s 59(2)). It is required to inform the Minister, in writing, of those principles and to notify any variations (DHAA, s 59(2)(b), (3)). By the DHAA, the Lands Acquisition Act 1989 Cth does not apply in relation to DHA (DHAA, s 61) nor, subject to the Act, is DHA "subject to taxation under the laws of the Commonwealth or of a State or Territory" (DHAA, s 63(1)). It is essential to consider these provisions as a prelude to evaluating a number of the arguments which follow.

After the establishment of DHA and the early development of housing management procedures, provisional guidelines were developed jointly between the Headquarters of the Australian Defence Force and DHA [180] . These specify a particular interest of DHA in long-term leases so as to "minimise disruption to families at the expiration of leases" (HMG, cl 4.7.1). The guidelines also provide for inspection, asserting that "[b]y law, the owner of a leased property is allowed periodic access to inspect [the] property" (HMG, cl 4.7.3). The owner is also allowed "reasonable access" for the purpose of selling or re-letting the house (HMG, cl 4.7.5). The guidelines, being intended to operate throughout Australia, make no reference to the RTA or any other State statute. Nor do they identify any "law" giving rise to the asserted entitlement to inspection and access.

1. Housing Management Guidelines (Provisional) (HMG).

The lease between DHA and the second respondents (as successors to the original lessor) contains a number of relevant clauses. One states that the lease is to be construed according to the laws of the State of New South Wales (cl 1.8). However, the covenants and powers implied in or under the Real Property Act 1900 NSW and the Conveyancing Act 1919 NSW or other Acts "passed or to be passed" are stated to "not apply to or be implied" in the lease except as provided by the lease. In the case of any conflict or inconsistency, the provisions of the lease are to prevail over those of the Act (cl 1.7). Provision is made for rent in the first year, and for the determination of rent in subsequent years, by reference to a formula taking into account consumer price index variations (cl 2.2) and a market review process (cll 2.2.3, 2.3). In the event of damage to, or destruction of, the premises an abatement of the rent is envisaged (cl 2.6.4). In the event of a dispute arising in that connection the parties agree that it be referred to arbitration "in accordance with the provisions of the Arbitration Act, 1902 or any statutory modifications for the time being in force" (cl 2.6.5). The named Act long since having been repealed, it may be assumed that the Commercial Arbitration Act 1984 NSW falls within the ambit of the "modifications" contemplated.

Specific acknowledgment is made by the lessor of awareness that DHA, as lessee, has "leased the subject premises to provide residential dwelling units to the Commonwealth of Australia for occupation by personnel of the Australian Defence Services and the Department of Defence" (cl 4.1). The lessor "consents unconditionally" to such sub-letting (cl 4.2). Should DHA, during the currency of the lease, give the lessors notice that the Commonwealth no longer requires the premises for tenancy by defence personnel, and the lessors do not elect to terminate the lease, DHA may effect a further sub-letting or assignment subject to the prior consent of the lessor (cll 4.3, 4.4.1, 4.5.1). Such consent may not be unreasonably withheld (cll 4.4.1, 4.5.1). In the case of sub-letting (cl 4.4.2):

[it must be] on the terms and conditions of this Lease to the extent that they are applicable but amended so that such terms and conditions comply with the provisions of the Residential Tenancies Act, 1987. In the case of the assignment of the lease by the lessee, this may be effected subject to (relevantly) (cl 4.5.2): [T]he terms and conditions of this Lease being amended to the extent necessary to comply with the provisions of the Residential Tenancies Act, 1987.

Under the form of lease the lessor acknowledges awareness that "under the terms of the Lessee's arrangement with the Commonwealth, the Lessee has undertaken to attend to all aspects of repairs and maintenance save for those minor matters which are made the responsibility of the tenant" (cl 5.4). There are then set out a number of covenants on the part of the lessee including to "comply with all statutes, ordinances, proclamations, orders and regulations present or future affecting or relating to the Demised Premises or the use thereof or any authority having jurisdiction or authority in respect of the Demised Premises or the use thereof" (cl 6.3). Provision is made for DHA, "in fulfilment of its obligations to the Commonwealth", to carry out repair and maintenance work which is the responsibility of the lessor at the lessor's expense (cl 9.4). The lessor assumes the obligation to procure "the due registration" of the lease (cl 11.4). Other provisions refer to State legislation, either expressly [181] or by implication (see, eg, cl 11.6), upon an apparent assumption that such legislation would apply.

1. See, eg, cl 16.3.1 (Strata Titles Act 1973 NSW, now Strata Titles (Freehold Development) Act 1973 NSW).

DHA did not contest that the second respondents, as lessors, might have certain contractual rights under the lease which they could enforce against it pursuant to the contract. It argued that any such rights could only be enforced in this Court [182] or in a suit in the Supreme Court of the State in which the claim arose [183] . In such a suit, the rights of parties would, as nearly as possible, be the same and judgment given "as in a suit between subject and subject" [184] . Only in a court exercising federal jurisdiction could "adequate remedies", provided by the laws of the Commonwealth or the applicable common law as modified by the "statute law in force in the State", be invoked [185] .

1. Constitution, s 75(iii). 2. Judiciary Act 1903 Cth, s 56(1)(b). 3. Judiciary Act, s 64. 4. Judiciary Act, s 80.

The objection of DHA to the second respondents' invocation of the jurisdiction of the Tribunal having been raised, it must be assumed that it accepted that this Court or another court authorised by law could afford relief either in accordance with the contract of lease entered with DHA or in accordance with the unspecified "law" to which reference was made in DHA's own guidelines. However, such right to relief would arise not out of any State statute (such as the RTA) but by the combined force of the contract voluntarily entered by DHA as an emanation of the Commonwealth and the provisions of the Constitution and federal legislation submitting such a dispute to decision in this Court or a court exercising federal jurisdiction.

The State law which is in question here (the RTA) is one of those statutes which is designed to ensure that disputes of the specified class proceed not in the general courts but in a particular tribunal, constituted in a particular way, proceeding with a measure of informality and subject to limited powers of enforcement. In the law of landlord and tenant, such legislation has an extended history [186] . By s 71 of the RTA it is provided that no proceedings in the Supreme Court, the District Court or a Local Court to "obtain recovery of possession of residential premises subject to a residential tenancy agreement" may be commenced by a landlord against a tenant. The terms "residential premises" and "residential tenancy agreement" are widely defined in s 3 of the RTA. If constitutionally permissible, they would embrace the premises and agreement referred to in the lease between DHA and the second respondents.

1. See, eg, Landlord and Tenant (Amendment) Act 1948 NSW considered in The Commonwealth v Anderson (1960) 105 CLR 303 at 308cf Landlord and Tenant Act 1899 NSW, s 2A considered in The Commonwealth v Rhind (1966) 119 CLR 584 at 598

Section 4 of the RTA contains a provision purporting to expand application of the RTA to the Crown in capacities other than in right of New South Wales:

this Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

The last phrase would, on its face, include the Crown in right of the Commonwealth. Accordingly, under this provision of the RTA, a question arises as to whether the legislative power of the New South Wales Parliament permits that legislature to apply the Act to DHA as the Crown in right of the Commonwealth for the purposes of the present proceedings.

Certain premises covered by federal legislation are expressly excluded from the application of the Act [187] . However, premises let under the DHAA are not expressly so mentioned.

1. RTA, s 6(2)(f) and (g) excludes premises within the Aged or Disabled Persons Homes Act 1954 Cth (now Aged or Disabled Persons Care Act 1954 Cth) and Aged or Disabled Persons Hostels Act 1972 Cth.

The RTA provides that a term of a residential tenancy agreement is void to the extent to which it is inconsistent with any term incorporated in the agreement by force of Part 3 (RTA, s 11). That Part contains, amongst other things, rights and obligations of landlords and tenants designed to bind them both, whatever their agreement might say. Amongst the landlord's rights are elaborate provisions (as "a term of every residential tenancy agreement") for entry upon "residential premises" in eight stated circumstances (RTA, s 24(1)). One of these is "in accordance with an order of the Tribunal" (RTA, s 24(1)(h)). Many of the terms enacted by the RTA relate closely the substantive entitlements incorporated in the agreement by statute and the functions of the Tribunal in giving content to such entitlements. Thus, a landlord may not ordinarily alter, remove or add any lock or security device of residential premises (RTA, s 29(2)). An exception is provided by order of the Tribunal (RTA, s 29(3)(b); cf s 29(5)(a)). Although a number of the statutory terms provided by the RTA are self-executing, many others are inextricably linked to decisions of the Tribunal (See, eg, RTA, Pt 5 Div 3).

The Tribunal itself comprises a "chairperson" required to be, or to be qualified for appointment as, a magistrate; full-time members who are legally qualified; and part-time members not required to be so (RTA, s 80(1)). Because it was conceded for the Tribunal that proceedings in front of it were not a "suit", as that word is used in the Judiciary Act [188] , and by the second respondents that the Tribunal was not a "court" of a State, as that word is used in the Constitution [189] and the Judiciary Act [190] , I shall not delay to examine the powers of the Tribunal. As its name indicates, it is established to offer an expeditious and inexpensive resolution of disputes between parties, typically (but not always) of modest means, first by conciliation (RTA, s 109) and then by a decision addressed to broadly stated criteria (see RTA, s 93(4)(b)), following informal procedures (RTA, s 93(4)(a)).

1. Judiciary Act, ss 56, 64. 2. The Constitution, s 77(iii) 3. eg, Judiciary Act, s 80.

Before leaving the RTA, it is worth noticing the provision which is made to punish contraventions of the Act by the imposition of criminal penalties (RTA, s 125). A breach by a landlord of the provisions limiting entry upon the residential premises is a criminal offence (RTA, s 125(1) in relation to s 24(5)). So is the alteration, removal or addition of a lock or security device by a landlord or a tenant, unless done in accordance with the Act (RTA, s 125(1) in relation to s 29(2)).

DHA asserted that, whatever might be the general application of State law to its leases, the scheme of the rights and duties provided by the RTA was inconsistent, in important respects, with the terms of the particular lease binding it and the second respondents.

Although presented in a different sequence in the order nisi, it is logical first to address the question raised by the arguments based on s 52(ii) of the Constitution. This is because, if the RTA, properly characterised, is, relevantly, a law with respect to "[m]atters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth", the State Parliament had no power whatever to make such a law affecting DHA. There can be no inconsistency if there is no valid "law of a State" [191] . Nor is it necessary to invoke suggested implied immunities if an express immunity arising from the Commonwealth's exclusive law-making power applies.

1. Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 679-680

Upon this basis the issues presented for decision, in proper sequence, are:

(1) Is s 52(ii) of the Constitution a transitional provision, the application of which is now effectively spent?

(2) Is DHA a "department of the public service" for the purposes of the paragraph and, if not, is the DHAA nonetheless a law with respect to "[m]atters relating to any department of the public service" because "relating to" the affairs of the Department of Defence?

(3) Properly characterised, does the State law (the RTA) intrude upon any "exclusive power" vested in the Federal Parliament by s 52(ii) of the Constitution?

(4) Is the State law (the RTA) inconsistent with a law of the Commonwealth (the DHAA) so that, to the extent of the inconsistency, the later prevails by force of s 109 of the Constitution?

(5) For the purposes of any implied immunity of the Commonwealth from the operation of a State law purporting to bind it, is DHA, relevantly, "the Commonwealth" and so entitled to the immunity?

(6) If so, what is the scope of that immunity and is DHA within that immunity with respect to the purported application to it of the State law?

(7) If so, is the State law nevertheless valid as a law of general application which "affects" the Commonwealth in a constitutionally permissible way?

(8) For the purposes of the Judiciary Act 1903 Cth, is the DHAA "the Commonwealth"?

(9) If so, and if the State law (the RTA) is constitutionally valid and may apply to DHA, does the Judiciary Act operate to subject the DHA to an order of the Tribunal or is DHA otherwise subject to the jurisdiction of the Tribunal and amenable to its orders?

If DHA succeeds on any of the stated issues, it is entitled to an order of prohibition. In deference to the full arguments of the parties and interveners, and the importance of the issues, I propose to deal with each of the issues in contest.

Section 52(ii) is not transitional. The respondents submitted that s 52(ii) of the Constitution was transitional and now largely, if not entirely, spent. I have conceded elsewhere that there are arguments and authorities supporting this view [192] . They were relied upon in these proceedings. They warrant acknowledgment:

It was always contemplated that more departments of the public service of the Commonwealth would be created than those which were transferred to it by or under the Constitution. Unless the provision were transitional, it is difficult to see an explanation for affording an exclusive power under s 52 to make laws with respect to matters relating to the original departments but only a concurrent power in s 51 with respect to departments subsequently established under s 64 of the Constitution [193] .

The federal Parliament enjoys sufficient power to afford the Commonwealth complete control of all of its departments so established, whether pursuant to s 51, as implied by ss 61 and 64, or reliant on the residue of the prerogative of the Crown in right of the Commonwealth. State legislation purporting to intrude into matters relating to federal departments would therefore be invalid. It was this consideration, principally, that led Latham CJ to suggest that s 52(ii) was "directed to establishing Commonwealth control of certain State servants and State property, subject to conditions stated in ss 84 and 85 [of the Constitution]" [194] .

The express reference to a "department transferred" appears to be a cross-reference to ss 84 and 85 of the Constitution. Historical materials show that the federal Department of Defence was established by the Governor-General on 1 January 1901, immediately following the gazettal of the Royal Proclamation bringing the Commonwealth into existence and constituting the first Federal Executive Council [195] . The transfer of State (formerly colonial) naval and military defence departments to the Commonwealth, pursuant to s 69 of the Constitution, was not effected until the Proclamation came into effect on 1 March 1901 [196] . The transferred officers were soon joined by officers directly recruited to service in the federal department [197] . Thus, from the earliest days, there was a distinction between "[m]atters relating to any department transferred" and matters relating to the new federal department established pursuant to the Constitution [198] .

Because the Constitution (including s 52(ii)) was drafted with the doctrine of immunity of instrumentalities in mind, the notion that an express constitutional provision was required to protect matters relating to the original departments from an invasion of State laws would have been furthermost from the contemplation of its framers.

If the theory of "exclusive power" were given a broad ambit, s 52(ii) would afford a high measure of immunity from State laws of general application but to some only of the matters relevant to the federal public service, being those "relating to" the original departments transferred. Upon such a view, decisions of the Court, which are convenient and have stood for a long time, might need to be reconsidered [199] .

Accordingly, s 52(ii) should be confined to transitional or residual matters, affecting the transferred departments. Such matters would include the prevention of the enactment of laws by State Parliaments with respect to members of the former colonial departments transferred to the Executive Government of the Commonwealth, affording benefits or preferences to the transferred officers which might make the achievement of uniformity of their treatment by the new Commonwealth difficult.

1. Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 577-578 2. Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 578 3. Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571-572cf R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 274-275 4. Commonwealth of Australia Gazette (No 1), 1 January 1901 at p 4; see also Constitution, s 69; cf Renfree, The Executive Power of the Commonwealth of Australia (1984), p 190. 5. Commonwealth of Australia Gazette (No 9), 20 February 1901. 6. See Defence Act 1903 Cth, Pt 3 Div 2. 7. Pursuant to the Constitution, s 64 and as contemplated by s 51(vi). 8. Such as Pirrie v McFarlane (1925) 36 CLR 170The Commonwealth submitted that that case was wrongly decided.

I accept that these arguments for confining s 52(ii) to a transitional function have certain attractions. The meaning of s 52(ii) is not beyond doubt. I have reconsidered the matter in light of the opinions of the other members of this Court. However, I was not convinced by the arguments in 1985 [200] . The intervening years and further argument have not altered my opinion:

The context speaks strongly against confining s 52(ii) to a transitional effect. Such confinement could not be suggested of s 52(i), dealing with the seat of government and Commonwealth places. It would be highly inappropriate to s 52(iii), incorporating by reference such provisions of the Constitution as s 90 with its guarantee of the flow of revenue from duties of customs and excise. Squeezing a transitional or residual power inappropriately between two important, permanent and continuing heads of exclusive legislative power, appears extremely unlikely as a matter of drafting technique. Context and structure are tools commonly used in construing any written instrument, but particularly a Constitution expressed in sparse language and intended to have an enduring operation.

The language of the provision is specially relevant because the opening words of s 52 comprise not only the usual formula for the conferral of legislative power (the same as used in s 51) but also the express conferral of "exclusive power". Those words have been given an ample operation in the context of s 52(i) [201] . No good reason exists for adopting a narrower approach in the case of s 52(ii). The opening words confer plenary legislative power. They do not exclude or limit it.

The drafting history of ss 52(ii) and 69 of the Constitution rebut the suggestion that s 52(ii) was intended to be no more than transitional. The debates reveal an assumption that the transfer to the departments enumerated in s 69 was intended to centralise their control for all time in the Commonwealth [202] .

If s 52(ii) were merely transitional or residual, it might have been expected that its provisions would have been found in ss 84 and 85. Those sections, without more or supported by s 51, would alone have afforded adequate legislative power to the Federal Parliament to make laws with respect to transitional matters. As the State (formerly colonial) departments of naval and military defence were actually transferred to the Commonwealth with effect from 1 March 1901, the transition said to necessitate exclusive legislative powers was completed, as a matter of history, before the Federal Parliament met for the first time [203] . Whilst, doubtless, some other transitional matters remained, the suggested inclusion of such a large power in an enduring Constitution for the comparatively trivial and transitory purpose nominated is unconvincing.

Unsurprisingly, therefore, the broader view of the operation of s 52(ii) has enjoyed much support from the outset [204] .

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.

Whatever the original reasons for it, the paragraph is there. It must be given meaning as is appropriate to a provision appearing in a Constitution, relatively inflexible and intended to endure indefinitely. The paragraph is expressed not with respect to the department or administrative and personnel matters as such. It attaches to the more abstract notion of "[m]atters relating to" such departments. Analogous concepts are repeated in a number of other grants of federal legislative power indubitably meant to have a permanent, and not transitional, operation (eg, ss 51(xxxvi), 51(xxxvii), 51(xxxix) and 52(iii)).

1. Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 579 2. cf Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 263 Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630See also Zines, The High Court and the Constitution, 4th ed (1997), p 372. 3. Official Record of the Debates of the Australasian Convention, (Sydney), 6 April 1891, p 778; (Adelaide), 19 April 1897, p 920. 4. On 9 May 1901. See Commonwealth, Parliamentary Debates (Hansard), 9 May 1901, p 5. Indeed, the departments of customs and of excise in each State were, pursuant to s 69, transferred to the Commonwealth on its establishment. 5. Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp 660-661; D'Emden v Pedder (1904) 1 CLR 91 at 108-109 Pirrie v McFarlane (1925) 36 CLR 170 at 184, 199, 221, 227-228; Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 421-422 In re Income Tax Acts [No 4] (Wollaston's Case) (1902) 28 VLR 357 at 377. 6. Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571-572cf West v Commissioner of Taxation (NSW) (1937) 56 CLR 657 at 668-669 7. Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 571 8. See Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 556 9. cf Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 579

The better view, therefore, is that s 52(ii) is a grant of exclusive legislative power, intended to have continuing effect and expressed in language apt for a broad and enduring operation.

Defence housing is a matter relating to a department of the public service. But did the alteration of the legal arrangements for defence housing, following the passage of the DHAA, extinguish the exclusivity of the federal legislative power when it came to the functions of DHA? The respondents submitted that s 52(ii) was addressed to departments of the federal public service and not to an independent statutory authority, such as DHA. Dicta were invoked to support the proposition that the subject matter of s 52(ii) is "the administrative control of the department" [209] . Upon this argument, a State law, such as the RTA, with an incidental effect upon DHA, was not referable to one of the federal departments contemplated by s 52(ii).

1. Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 583, per Starke J; Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 587-588, per Samuels JA; cf Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901), p 660.

There are propositions which can be, and were, marshalled for DHA to the effect that it remained, relevantly, a "department" and one of those initially "transferred". In issue is whether views which I accepted in analogous circumstances in Australian Postal Commission v Dao [210] were correct. If anything, the measure of ministerial control over DHA, illustrated in the extracts from its legislation cited above, makes the propositions advanced more persuasive in this case than they were in Dao , where they were nonetheless supported by Samuels JA [211] and myself but questioned by McHugh JA [212] .

1. (1985) 3 NSWLR 565 at 575-577. 2. Dao (1985) 3 NSWLR 565 at 589 3. Dao (1985) 3 NSWLR 565 at 603

I regard this question as interesting and debatable. But because it is not necessary to my conclusion, I will pass it by.

Even if it be assumed that DHA is not a "department of the public service" for the purposes of s 52(ii), that is by no means conclusive of the issue. The grant of exclusive legislative power is with respect to "[m]atters relating to" any such department. Notwithstanding the establishment of DHA as a separate authority, I regard it as incontestable that the provision of housing to defence personnel is a "matter relating to" the Department of Defence. Quite apart from the many ways in which the Minister for Defence, administering that department under s 64 of the Constitution, retains a close involvement in, and power over, DHA the very nature of housing defence personnel is indubitably "a matter relating to" that department. Even if the words "relating to any department" narrow the concept of "matters" to matters of management and administration of the department, the provision of housing to such personnel is clearly within the ambit of such "matters". As the task force report and other background documents show (and commonsense confirms), an essential matter "relating to" a defence department in Australia is the provision of housing appropriate to naval and military personnel necessary for the effective defence of a continental nation. In such matters, the Constitution has declared that the federal Parliament has exclusive power to make laws. I do not find that declaration surprising.

Upon this view, the DHAA may be characterised as the exercise of the exclusive legislative power under s 52(ii) of the Constitution, although it might also have been sustained, were there no s 52(ii), by the concurrent legislative powers conferred by s 51 (such as s 51(vi) and 51(xxxix)).

The State law is excluded. At this point, the respondents submitted that the relevant provisions of the RTA did not fall within the area marked out by s 52(ii) as reserved to the exclusive legislative power of the federal Parliament. They submitted that, in its application to DHA, the impugned provisions of the RTA could not be characterised as a law "with respect to [m]atters relating to" the Department of Defence.

It is true that the mere reference to the department or application to it would not bring an impugned State law within the prohibited area of law-making [213] . The RTA is a general statute of the New South Wales Parliament. Generally, it may be properly viewed as a law with respect to tenancy. I accept the force of these propositions. However, they overlook the stringent view which this Court has elsewhere adopted when determining what "exclusive" means in cases under s 52 [214] . The word means what it says. Especially appearing in such a context, it is impermissible to give it narrow meaning. As was recently pointed out in Allders International Pty Ltd v Commissioner of State Revenue (Vict) [215] , the question has rarely, if ever, been what legislative power is given to the Commonwealth. Typically it has been what legislative power is thereby denied to a State [216] . If the federal Parliament has exclusive legislative power, it follows that the State Parliament has no legislative power at all with respect to that matter [217] . If this necessary result of the constitutional language is thought to create difficulty or uncertainty (as was suggested in the case of Commonwealth places) general or special legislation is available to the federal Parliament to remedy such a problem [218] .

1. Bank of NSW v Commonwealth (1948) 76 CLR 1 at 186 Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 638, 670-671. 2. eg, Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 3. (1996) 186 CLR 630. 4. Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 679-680 5. Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89 Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 6. As was done by the Commonwealth Places (Application of Laws) Act 1970 Cth noted in Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 669-670See also Petroleum Retail Marketing Franchise Act 1980 Cth, ss 8, 24 noted in Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 451

In the context of s 52(i) of the Constitution, the broad view supported by previous authority of this Court was recently reaffirmed in Allders [219] . According to the majority opinions the only laws that might be enacted by a legislature with respect to the designated subject matter are federal, because this portion of the legislative power in Australia is, by s 52(i), reserved exclusively to the federal Parliament [220] . That view, if extended to s 52(ii), would expel any application of State law to a matter falling within s 52(ii). It would therefore expel the RTA from affecting DHA's leases.

1. (1996) 186 CLR 630. 2. Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 662, 673-674.

It was next submitted that, because s 52(i) refers to places, and the other paragraphs of the section refer to "matters", a different approach to the ambit of exclusivity should be adopted. I cannot agree. The reference to "exclusive power" appears in the opening words of the section. Those words are equally applicable to each of the paragraphs which follows, governing "matters" as well as places. The ascertainment of the ambit of "matters" might be more difficult than the definition of particular places. But such is the nature of constitutional interpretation. If the view on the ambit of s 52(i), expressed by Brennan CJ (also in the majority) in Allders , were applied to s 52(ii) [221] , it would be enough if a "material nexus" were shown "between the act, matter or thing" to which the State law applied and a matter relating to any department of the federal public service falling within s 52(ii). In that event [222] :

a State law of general application that applies to any act, matter or thing that occurs or exists is to that extent [223] beyond power If it were otherwise the area of operation of the State law would overlap with the area within which a Commonwealth law could operate. And that would offend the exclusivity of Commonwealth power mandated by s 52. 1. Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 639-640, per Brennan CJ. 2. Allders (1996) 186 CLR 630 at 639-640 3. Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 at 274-275, 287.

A State law, even if otherwise of general application with respect to matters of tenancy, which purported to affect matters relating to the Department of Defence would, by analogy with Allders , offend the legislative exclusivity reserved to the federal Parliament by s 52(ii). To that extent, it would be invalid. The questions that may be presented in considering whether a law of a State is inconsistent with a law of the Commonwealth under s 109 do not then arise. It is enough that the State law purports to intrude into the legislative territory marked out for the exclusive power of the Federal Parliament. That Parliament may, if it so chooses, apply State legislation, generally or with limitations, to matters within its exclusive power. If it does not, State legislation has no application by its own force. If it does, it has operation by virtue of federal, not State, law.

Housing of defence personnel is a "matter relating to" the Department of Defence (whatever other matters may or may not fall within the characterisation proper of that phrase). Accordingly, the RTA has no application to the leases affecting, directly or indirectly, such housing. The lease granted by the second respondents to DHA was known, and expressed, to be for the purpose of such housing. It explicitly contemplated sub-leases to the Commonwealth and to defence personnel. Doubtless, such arrangements had certain advantages for the second respondents. One disadvantage was that legislative regulation of the arrangement was reserved to the federal Parliament. No federal legislation of a general or specific character has been enacted to extend State legislation such as the RTA to such leases. Although the lease in this case mentions the RTA in passing, the general provisions of that State law are not made applicable to the lease (assuming that to be possible by contract). To subject DHA, operating under legislation enacted within the exclusive power of the federal Parliament, to a State tribunal empowered to make orders which might affect the terms and conditions of housing of defence personnel would require the explicit endorsement of federal law. Because that endorsement is absent from the DHAA and finds support in no other federal legislation, no basis is afforded to empower the Tribunal to make orders, under the RTA, affecting DHA or residential leases with it.

The drafter of the RTA may have foreseen this possible difficulty by making it clear, in s 4, that the Act of the New South Wales Parliament only purported to bind the Crown in other capacities "so far as the legislative power of [the New South Wales] Parliament permits". However that may be, there is no legal foundation for the assumed jurisdiction of the Tribunal in this case. DHA is therefore entitled to have the order nisi for prohibition made absolute.

Direct and indirect inconsistency: Upon an assumption that the foregoing conclusion is not correct, and that s 52(ii) does not sustain DHA's objections to the asserted jurisdiction of the Tribunal, it is appropriate to consider DHA's reliance on s 109 of the Constitution.

DHA argued that the DHAA was a comprehensive and exclusive code regulating the means by which DHA would perform its statutory functions of providing adequate and suitable housing for defence personnel as required by the defence force and the Department throughout Australia. To the extent to which the RTA attempted to enter this "field" of operation, it therefore offended s 109 and was inoperative [224] .

1. See Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489 Ex parte McLean (1930) 43 CLR 472 at 483.

DHA relied upon several instances of direct inconsistency between the State law (the RTA) and the federal law (the DHAA) illustrating an impermissible impairment of, or inhibition upon, the exercise of DHA's powers and the powers conferred on the Minister administering the DHAA [225] . Specifically, emphasis was placed upon the fact that the RTA would, if valid and applicable, empower the Tribunal, in respect of a residential tenancy with DHA in New South Wales, to override the exercise by DHA or the Minister of their respective powers conferred by the DHAA. In particular, the power conferred on DHA by s 7 of the federal Act to "do all things necessary or convenient to be done for, or in connection with, the performance of its functions and, in particular" to rent out housing made available to it (DHAA, s 7(1)(e)), to determine rents (DHAA, s 7(1)(f)) and to evict tenants (DHAA, s 7(1)(g)), without any mention of the involvement of the Tribunal, would conflict directly with the powers purportedly reserved by the RTA to the Tribunal in respect of all residential tenancy agreements falling within the ambit of its jurisdiction.

1. cf Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 477-478, 490, 522; Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 160, 161, 163; Blackley v Devondale Cream (Vict) Pty Ltd (1968) 117 CLR 253 at 258

The respondents contested this interpretation of the DHAA. They argued that the federal Act was intended to operate in a milieu of State law, including the RTA. Thus the power to "rent out" land and houses (DHAA, s 7(1)(e)) and to "evict tenants" (DHAA, s 7(1)(g)) pre-supposed the existing legal system of landlord and tenant, operating in the jurisdiction in question. In order to enforce the obligation entered by the parties, it would be necessary for DHA, like any other legal person, to demonstrate not simply the power to act but also the legal basis for doing so [226] . Whereas the federal Parliament might, within its legislative powers, have chosen to prescribe a code of landlord and tenant law which would expressly expel inconsistent State laws, it had not done so. Only State taxation laws were so excluded (DHAA, s 63). By juxtaposition, it was argued, other State legislation of general application, including the RTA, continued to operate [227] .

1. eg, Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 265, 266-267, 287. 2. cf Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 157 Raptis (A) & Son v South Australia (1977) 138 CLR 346 at 358 State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 269-270

The law of landlord and tenant is complex. In Australia, it is now largely regulated by State and Territory legislation. The respondents submitted that, in the context of a federal statute, containing only the most skeletal of provisions to govern the detail of the many issues which can arise, to commit such issues to resolution by the common law, untouched by State or Territory legislation, would be to find constitutional inconsistency where none was necessary. Particularly because DHA had been separated from the federal Department, given a separate statutory status as a corporation and enjoined to act "in accordance with sound commercial practice" (DHAA, s 6(b)), the intention that it should participate in the marketplace on a footing equivalent to that of other lessees could be inferred. DHA's own lease referred to State legislation, including the RTA, apparently contemplating that it would have some application to the subject premises (or would be specifically excluded from application upon the hypothesis that otherwise it would apply). Although the DHAA might, if it wished, have established its own tenancy code, it had not done so. The clearest indication of reliance upon State law was to be found in s 11(1)(c) of the DHAA. By that paragraph, DHA was empowered to "acquire, hold and dispose of real and personal property". Such "property" is simply the bundle of rights which the law (in Australia, overwhelmingly State law) affords.

Inconsistency of laws is shown: In its argument for inconsistency under s 109 of the Constitution DHA laid much emphasis on the differing express provisions in its lease, including in respect of provisions for rent increases (Pt 2; cf the RTA, Pt 4, Div 2), provisions for consent to sub-letting (cl 4.2; cf the RTA, s 33), provisions for maintenance (Pts 5, 9; cf the RTA, s 25(1)(b)), provisions for default and termination (Pt 10; cf the RTA, Pt 5) and the general form of the lease when compared to the standard form envisaged under the Act [228] .

1. eg, the RTA, s 8, Pt 3; Residential Tenancies Regulation 1989 NSW, reg 21, Sch 1 as it stood at the relevant time.

Unsurprisingly, the tests for inconsistency under s 109 of the Constitution have a common element, being derived from the single constitutional text [229] . It is essential, first, to characterise the federal law in question. Logically, characterisation comes before the determination of the scope of the federal law. Ascertaining the character and the scope of the federal law is sometimes expressed in terms of finding the "intention" of the Parliament and whether it is to be taken to have been to exclude regulation of the relevant conduct by State law [230] . Those who regard the search for "intention" as fictitious must content themselves with an acceptance that it is the function of the courts, ultimately this Court, to specify what the purpose and effect (and hence the imputed intention) of the competing legislation is. As this case illustrates, the resolution of that task is controversial. There are indications here which point in opposing directions. There is not in this case, as often now appears in federal legislation, an express preservation of State laws of general application [231] . On the other hand, there are no detailed federal provisions which would make absolutely clear the expulsion of State laws. Behind constitutional evaluations of this character there doubtless lie differing judicial conceptions as to the role of federal legislation and the function of s 109 in securing the Commonwealth's legislative supremacy under the Constitution [232] . I must state my conception.

1. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 248, 260, 280; Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 449see also Rumble, The Nature of Inconsistency Under Section 109 of the Constitution, Federal Law Review, vol 11 (1980) 40, at p 72. 2. Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 280, per Aickin J; cf R v L (1991) 174 CLR 379 at 386 3. cf Dao v Australian Postal Commission (1987) 162 CLR 317 at 338-339cf Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 417 Majik Markets v Brake & Service Centre (1991) 28 NSWLR 443 at 451 4. Victoria v The Commonwealth (1937) 58 CLR 618 at 630 University of Wollongong v Metwally (1984) 158 CLR 447 at 457-458 Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 573applied in Deep Chand v State of Uttar Pradesh [1959] AIR(SC) 648.

The overall impression which I derive from the federal statute, properly characterised, is that, within the matters which it enacted, it was intended to operate nationally, uniformly and for a vital purpose of the Commonwealth. It was intended to secure efficiencies, including by the uniform national regulation of the renting of land and houses and the regulation of landlords and tenants. Those objects would be put at risk or liable to be frustrated if, without federal legislative warrant, DHA tenancies in New South Wales were rendered subject to the consumer protection provisions of the RTA and to the jurisdiction of the Tribunal created by it.

My impression of inconsistency derives from a comparison of the two laws. It is reinforced by the extensive area of control reserved under the DHAA to the Minister with respect to DHA's activities. Policies and orders of the Tribunal could quite easily run counter to those of the Minister and DHA. It is not a simple thing to disentangle the substantive rights afforded by the RTA from the powers conferred on the Tribunal to adjust those rights to particular circumstances. The inter-relationship of the substantive rights and the role of the Tribunal is not least relevant to the particular rights which the second respondents asserted before the Tribunal in this case, viz to enter the premises for inspection and to require DHA to provide them with a copy of the key. In the case of some defence personnel there might be special reasons why requiring the provision of a key, appropriate enough in most tenancy relationships, would be completely inappropriate. The reasons could be such that they should not be submitted to final determination by a body such as the Tribunal but reserved to federal authorities.

The "intention", purpose and effect of the federal Act seem to me, relevantly, to be the establishment of a body with powers to enter into leases, outside the complex rights and duties provided in the particular legislation of different Australian jurisdictions addressed to residential tenancy agreements [233] . In particular, the ultimate control of the terms of leases of land and houses was afforded by the federal Parliament to DHA in a way that is impossible to reconcile with according the final say, in one State only, to a tribunal whose statutory purposes, policies and objectives might be significantly different from those of DHA and its Minister. The fact that federal legislation does not deal elaborately with an area of law may not evidence an abandonment of that area to RTA. It may simply indicate an intention to afford the subjects of the federal law an uncontrolled discretion to fix their own rules, adopting State law as they choose, where that was considered desirable, but otherwise not being bound by it to the extent of any inconsistency. This does not mean that the entirety of State law was excluded from application to DHA leases. I agree that the DHAA contemplated that the common law and some State statutes might apply to a lease granted by or to DHA. But that is not the question in this case. That question is whether the consumer protection provisions of the RTA would apply to such leases uniquely in New South Wales and whether the Tribunal would be afforded jurisdiction to make orders binding on DHA.

1. See Rumble, The Nature of Inconsistency Under Section 109 of the Constitution, Federal Law Review, vol 11 (1980) 40, at p 72.

In so far as s 24(4) of the RTA would empower the Tribunal to order DHA to allow the second respondents to enter the demised premises for the purposes of inspection or, under s 29(5) to provide them with a copy of the key to the premises, such law conflicts with the DHAA which reserves those powers to DHA. It is therefore invalid under s 109 of the Constitution. Accordingly, the Tribunal has no jurisdiction to entertain the second respondents' application. DHA is entitled, upon this basis also, to the relief which it seeks.

Preliminary point: leave to reargue: I now reach the point which occasioned most of the argument of the parties. It begins with the issue as to whether leave, if necessary, should be given to permit a challenge to the holding of this Court in The Commonwealth v Cigamatic Pty Ltd (In liq) [234] . It was suggested that this holding was to the effect that the Commonwealth is, as such, immune from the binding force of State legislation. In light of my conclusion upon the two preceding questions, the question does not strictly need to be answered. However, because of the importance of the point, and because full argument was heard, I will express my opinion.

It is necessary to dispose of two preliminary points. The first of these is procedural. The respondents formally sought leave to reargue Cigamatic if that were required by the Court's practice as stated in Evda Nominees Pty Ltd v Victoria [235] . I am doubtful about the validity of this practice [236] . However, I shall assume that it should be followed.

1. (1984) 154 CLR 311 at 316. 2. cf Ha v NSW (1996) 70 ALJR 611 at 614137 ALR 40 at 43. See also Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316, per Deane J; Philip Morris Ltd v Commissioner of Business Franchises (Vict) (1989) 167 CLR 399 at 409Particular considerations apply where the challenge relates to the Constitution and its federal character: The Commonwealth v Cigamatic Pty Ltd (In liq) (1962) 108 CLR 372 at 389 Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 327-328 Stevens v Head (1993) 176 CLR 433 at 461-462 McGinty v Western Australia (1996) 186 CLR 140 at 235-236

By an analysis of the reasoning of the Justices in Cigamatic [237] , and of authority of the Court before [238] and since [239] , the respondents (and the States) argued that no binding rule existed which would preclude the Court's resolving the question, without the requirement for leave. It may be that, strictly analysed, there is no majority for the "broad principle" of constitutional immunity which Dixon CJ favoured and which he expressed in Cigamatic , with the concurrence of Kitto and Windeyer JJ. It may also be that the even more broadly stated formulation of the immunity by Fullagar J in The Commonwealth v Bogle [240] , expressed with the concurrence of Dixon CJ, Webb, Kitto and Taylor JJ, represents no more than obiter dicta.

1. (1962) 108 CLR 372. 2. Pirrie v McFarlane (1925) 36 CLR 170 Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd (1940) 63 CLR 278 In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 The Commonwealth v Bogle (1953) 89 CLR 229 3. Victoria v The Commonwealth (1971) 122 CLR 353 Attorney-General (NSW) v Stocks & Holdings (Constructors) Pty Ltd (1970) 124 CLR 262 4. (1953) 89 CLR 229 at 259-260.

McHugh JA remarked in Australian Postal Commission v Dao [241] that a constitutional doctrine which had the support of so many distinguished Justices [242] "is not likely to be erroneous" [243] . However, the "doctrine", in its various formulations, has attracted expressions of dissent and reservation in this Court [244] . It has certainly accumulated an impressive array of critics [245] . The various explanations and justifications offered to support the "doctrine" are, when analysed, each subject to serious and telling criticisms. To overcome the manifest inconveniences caused by the doctrine, exceptions have been invented to allow the Commonwealth to be "affected by" State laws although not bound by them [246] . This "affectation" is itself unclear. It is often difficult to distinguish it from binding force.

1. (1985) 3 NSWLR 565. 2. " not to mention the dissenting judgments of Isaacs and Rich JJ in Pirrie v McFarlane ." 3. Dao (1985) 3 NSWLR 565 at 598, per McHugh JA. 4. eg, Cigamatic (1962) 108 CLR 372 at 380, per McTiernan J; at 381-388, per Taylor J. 5. Zines, Sir Owen Dixon's Theory of Federalism, Federal Law Review, vol 1 (1965) 221 at 236; Meagher and Gummow, Sir Owen Dixon's Heresy, Australian Law Journal, vol 54 (1980) 25, at p 28; Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at p 524; Howard, Some Problems of Commonwealth Immunity and Exclusive Legislative Powers, Federal Law Review, vol 5 (1972) 31, at p 31; O'Brien, The Law Applicable to Federal Jurisdiction, University of New South Wales Law Journal, vol 2 (1977) 46, at pp 64-68; O'Brien, The Constitutional Validity of the Cross-Vesting Legislation, Melbourne University Law Review, vol 17 (1989) 307; Doyle, 1947 Revisited: The Immunity of the Commonwealth from State Law, in Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 47, at p 49. 6. The Commonwealth v Bogle (1953) 89 CLR 229 at 260, per Fullagar J; see also In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508 at 528 Cigamatic (1962) 108 CLR 372 at 378

The point is clearly one of constitutional importance. No procedural hurdle should stand in the way of its reconsideration, if that be necessary [247] .

1. cf Zines, The High Court and the Constitution, 4th ed (1997), p 355. The uncertainty is noted in a number of decisions providing an additional reason for reconsideration of the "doctrine"; see, eg, Trade Practices Commission v Manfal Pty Ltd (1990) 27 FCR 22 at 29 Re Commissioner of Water Resources [1991] 1 Qd R 549 at 555 Aboriginal Legal Service v Western Australia (1993) 9 WAR 297 at 322-323 Coco v Shaw [1994] 1 Qd R 469 at 477-478

The Authority is the Commonwealth: A second preliminary question, of more substance, remains. It is whether, for the purpose of the implied immunity, DHA is entitled to invoke the cloak of the Commonwealth. There are, of course, a number of indications in the DHAA to the effect that DHA is a separate and independent statutory body having a corporate existence apart from the Commonwealth and not entitled to invoke any such implied constitutional immunity as the Commonwealth may itself enjoy. If the Commonwealth cares to "privatise" or "corporatise" formerly governmental activities, it was put, courts will take the Commonwealth and the federal Parliament at their word. They will treat the "commercial" corporations so created as separate from the Commonwealth itself, including for constitutional purposes.

On the other hand, there are also a number of indications in the DHAA which support the general proposition that DHA is an agency or emanation of the Crown in right of the Commonwealth, entitled to attract such immunities as the Commonwealth enjoys. Whilst the DHA is declared to be a body corporate (DHAA, s 11(1)(a)), there are no corporators [248] . DHA's function is to provide housing for defence personnel, which is a traditional function of government, directly associated with the operations of the Department of Defence and the nation's defence forces [249] . One of the criteria for the performance of the functions of DHA is that it should accord with the policies of the Commonwealth [250] . There are many provisions for the exertion of ministerial control over the activities of DHA [251] . The provisions in relation to ministerial authority and approvals, borrowings, payment of dividends, auditing, the appointment and conditions of office-holders and exemption from taxation are all features of activities kept close to the Executive Government of the Commonwealth. More than in many other statutory corporations or private companies [252] , DHA's severance from the Commonwealth was a limited and contingent one, as befits the particular subject matters to which its functions relate (DHAA, s 5).

1. cf Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 274 Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 337-342 State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639 at 644-645, 649-652. 2. cf State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR639 at 646, 649-650. 3. DHAA, s 6; cf Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 339-340 4. See, eg, DHAA, ss 8, 9, 10, 22, 30, 31; cf Repatriation Commission v Kirkland (1923) 32 CLR 1 at 13-15, 20-21; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 348 5. eg, Commonwealth Hostels Ltd considered in The Commonwealth v Bogle (1953) 89 CLR 229

One view of the immunity belonging to the Commonwealth under the Cigamatic doctrine is that it is available to protect the Commonwealth as a juristic entity and not the servants, agents, or other emanations of the Commonwealth [253] . Critics of the wider exposition of the immunity have suggested that the worst inconveniences of the doctrine could be avoided if it were inapplicable to such servants, agents and emanations through which the Commonwealth often acts [254] . However, such a view is difficult to reconcile with the reasoning of this Court in Pirrie v McFarlane [255] , and with many of the explanations given for the immunity. It also hardly accords with the reality that the Commonwealth must, for practical reasons, operate through such servants, agents and emanations.

1. At common law the Crown's immunity in tort did not provide a general protection to its servants. See Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193; Hogg, Liability of the Crown, 2nd ed (1989), pp 141-142. 2. Howard, Some Problems of Commonwealth Immunity and Exclusive Legislative Powers, Federal Law Review, vol 5 (1972) 31; Evans, Rethinking Commonwealth Immunity, Melbourne University Law Review, vol 8 (1972) 521, at p 530. 3. (1925) 36 CLR 170.

I am prepared to accept, for the purpose of considering the suggested implied immunity, that DHA was relevantly the Commonwealth.

No implied immunity protects the Authority: The scope of the implied immunity varies from one formulation to another. This is part of the unsatisfactory character of this supposed "basal doctrine" of Australian federalism. Dixon J expressed his opinion, in dissent, in In re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [256] :

[T]o define or regulate the rights or privileges, duties or disabilities, of the Commonwealth in relation to the subjects of the Crown is not a matter for the States.

The legislative power of the States is not granted by the Constitution. It is not specific, but consists in the undefined residue of legislative power which remains after full effect is given to the provisions of the Constitution establishing the Commonwealth and arming it with the authority of a central government of enumerated powers.

In Cigamatic [257] , Dixon CJ (as he had by then become) pressed his views further: The proposition that is implied is that an exercise of State legislative power may directly derogate from the rights of the Commonwealth with respects to its people. It is a proposition which must go deep in the nature and operation of the federal system. There can be no doubt as to the nature or the source of the right of the Commonwealth in an administration of assets to be paid in preference to subjects of the Crown It springs from the nature of the Commonwealth as a government of the Queen. Therefore to treat those rights as subject to destruction or modification or qualification by the legislature of a State must mean that under the Constitution there resides in a State or States a legislative power to control legal rights and duties between the Commonwealth and its people. His Honour considered that the conferral of legislative power on the States was not only absent from the Constitution but incompatible with its terms [258] . 1. (1947) 74 CLR 508 at 528, 530. 2. (1962) 108 CLR 372 at 377. 3. Cigamatic (1962) 108 CLR 372 at 377-378

A clearer foundation for the supposed immunity is that given by Fullagar J (with whom Dixon CJ, Webb, Kitto and Taylor JJ agreed) in The Commonwealth v Bogle [259] :

The Crown in right of the State has assented to the statute, but the Crown in right of the Commonwealth has not, and the constitutional question, to my mind, is susceptible of only one answer, and that is that the State Parliament has no power over the Commonwealth. The Commonwealth - or the Crown in right of the Commonwealth, or whatever you choose to call it - is, to all intents and purposes, a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament The Commonwealth may, of course, become affected by State laws. These last stated propositions have given rise to the doctrine of immunity of the Commonwealth - or Crown in right of the Commonwealth - from State legislation. It will be immune unless, by its own legislation, the Commonwealth invites or permits the application of State legislation [260] or unless it otherwise becomes "affected by" such legislation. 1. (1953) 89 CLR 229 at 259-260. 2. eg, by the Judiciary Act 1903 Cth, ss 79, 80 operating in conjunction with ss 56, 57.

I disagree with the constitutional immunity urged by DHA in these proceedings based on Bogle and Cigamatic . No such doctrine is expressly stated in the Constitution. Although implications may arise from the text and structure of the Constitution, to be viable, they must be "logically or practically necessary" to the operation of the Constitution [261] . Given the relative inflexibility of the Constitution, and its resistance to formal amendment, the derivation of implications, not expressly stated and thus approved and impliedly accepted by the people of Australia, must be kept to cases where the implication is obvious, necessary and can be precisely defined [262] . An immunity of the scope urged in these proceedings by DHA meets none of these criteria.

1. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135 McGinty v Western Australia (1996) 186 CLR 140 at 168-169 2. eg, McGinty v Western Australia (1996) 186 CLR 140 at 184-185

Rejecting the suggested bases of a broad immunity: The suggested bases for the broad doctrine of implied constitutional immunity do not bear close analysis:

1. 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.

2. As to the argument that the immunity derives from the necessities of federal government in Australia, I beg to differ. In matters where the federal Parliament has exclusive power, or where the Executive Government can persuade the Parliament to enact federal legislation under a concurrent power, the federal Parliament expels, or may override, any inconsistent State law. The very terms of ss 52(ii) and 114 of the Constitution suggest, as a matter of textual construction, that but for their provision State laws could apply in the case of concurrent federal powers. Where the federal Parliament enjoys such powers, it has ample means, apart from reliance on any supposed immunity of the Commonwealth, to secure protection for the Commonwealth, if that be the will of the people's representatives in the Parliament. Far from being a necessity of the Australian federation, as it has developed, the supposed immunity of the Commonwealth from State legislation, certainly expressed as broadly as it is in Bogle [271] , may properly be viewed as an unconscious revival of the immunity doctrines propounded by this Court in its first years [272] . Those doctrines were founded on the suggested implications from the nature of the federal relationship. However, they were rejected in the Engineers' Case [273] . No attempt was made in this case to challenge the approach adopted there.

3. With respect to the suggested explanation for the immunity as deriving from the absence of the assent of the Crown in right of the Commonwealth to be bound by such laws [274] , this proposition is also hardly convincing. It conflicts with the notion of the indivisibility of the Crown throughout the Empire which existed when the Constitution was framed and long after [275] . It was established in colonial times that, without assent of the Crown in other rights, legislation might be validly enacted binding the Crown in all such rights [276] . It has been accepted that the Crown in right of a State may legislate so as to affect the Crown in right of another State or indeed the Crown in right of the United Kingdom [277] . The want of separate assent, certainly within the federation, is not therefore a satisfactory explanation for the suggested immunity of the Commonwealth from State legislation. It is unhistorical. It is also unnecessary to the proper operation of the Australian federation today.

4. 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] .

1. 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

Conclusion: Limited immunity is inapplicable: Dixon CJ rejected the notion that the immunity which he favoured was "governed by the applicability of the principles upon which Melbourne Corporation v The Commonwealth [283] depended" [284] . However, that decision seems a much sounder foundation from which to derive a coherent implied immunity of the Commonwealth than any offered in the Cigamatic line of cases. The implications of applying the principles in Melbourne Corporation [285] , by parity of reasoning, to the Commonwealth would be that a State Parliament could not, by legislation, single out the Commonwealth for discriminatory treatment [286] . A State Parliament could not legislate in a way that would impair the integrity or autonomy of the Government of the Commonwealth [287] . The federal structure of the Constitution imposes certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa) [288] . A State Parliament may not legislate so as to confer executive or judicial functions on the Commonwealth or its officers or instrumentalities without the consent of the Commonwealth. Then it might only do so in accordance with the Constitution [289] . Where the federal Parliament enjoys exclusive power, express or implied, purported State legislation invading the exclusive zone will have no lawful effect [290] . There may be some prerogatives of the Crown in right of the Commonwealth which cannot be the subject of State legislation because they are central to the continued existence of the Commonwealth itself [291] . It is unnecessary to explore the precise ambit of this immunity. The prospect of State legislation upon such matters is so remote [292] as to relieve me of giving it detailed consideration. In any event, it is irrelevant to the present controversy.

1. (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.

The development of a constitutional doctrine of mutuality, cooperation and inter-relationship is much more in keeping with the nature of the federal polity established by the Australian Constitution [293] . The supposed constitutional doctrine of implied immunity of the Commonwealth from State laws, so broadly expressed in Bogle and even in Cigamatic , should, in my view, be reverently laid to rest.

1. The Canadian position is not entirely clear: see Hogg, Constitutional Law of Canada, 3rd ed (1992), pp 275-276; McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977), pp 37-40; cf Gauthier v The King (1918) 56 SCR 176 Dominion Building Corporation v The King [1933] AC 533It is apparent that a provincial law of general application which does not affect any prerogative right of the Crown in right of Canada, in an area where there is no federal legislation, will bind the Crown in right of Canada: Dominion Building Corporation v The King [1933] AC 533 R v Murray [1967] SCR 262Commentators suggest that there should be no general immunity: Hogg, Constitutional Law of Canada, 3rd ed (1992), p 276; McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977), pp 37-40. So far as the United States is concerned, the position is affected by the Supremacy Clause in the Constitution: South Carolina v Baker (1988) 485 US 505 at 518-519fn 11. There is no precise equivalent to this clause in the Australian Constitution. But even this does not (nor does the constitutional grant of plenary legislative power) "[bar] all state regulation which may touch the activities of the Federal Government": Hancock v Train (1976) 426 US 167 at 179-180See also Penn Dairies v Milk Control Commission (1943) 318 US 261 Alabama v King & Boozer (1941) 314 US 1The references in argument to other federal constitutions were limited and undeveloped.

Upon no view could the more limited immunity of the Commonwealth from State law favoured by me extend to exempt the Commonwealth, in the form of DHA, from the State law in question here, if that law were otherwise applicable. The exact formulation of that immunity should await future cases where it is necessary to define it. Its conceptual foundation lies in the principle underlying Melbourne Corporation [294] , not Cigamatic [295] .

1. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 2. (1962) 108 CLR 372.

These conclusions relieve me of having to determine, within the supposed broad doctrine, whether, in the instant case, the Commonwealth was nonetheless "affected" by the RTA as a State law of general application. In so far as the prerogatives of the Crown in right of the Commonwealth are impliedly immune from State legislation, it is enough to say that I would not have regarded the activities of DHA as being within those immune prerogative powers.

The Tribunal conceded that if all other arguments failed, it could not rely upon s 64 of the Judiciary Act. It gave as its reason that the particular powers in the present case did not involve a "suit" in federal jurisdiction. The second respondents primarily submitted that the RTA applied of its own force to DHA, not being prevented from doing so by any implied constitutional immunity. Although I would uphold the respondents' submission on the implied immunity, I have already concluded that for reasons of incompatibility with the federal Act (the DHAA) the State Act (the RTA) has no valid application to the leases granted to and by DHA.

The second respondents advanced a subsidiary argument. It was that DHA should be taken to have submitted to the operation of relevant New South Wales legislation, including the RTA, by the terms of cll 1.8 and 6.3 of the lease. This argument can be readily dismissed. An agreement to construe the lease according to the laws of New South Wales does not, by its terms, incorporate the substantive rights or the powers of the Tribunal under the RTA, assuming that to be possible. The promise to comply with legislation affecting the demised premises, as in cl 6.3, begs the question which these proceedings must answer. Upon the conclusion which I have reached, there is no such effect.

The Judiciary Act, in harmony with the Constitution, was intended, relevantly, to overcome the procedural barrier against pursuing the Crown in the Crown's courts [296] . In the specified cases, it sought to equate the Crown in right of the Commonwealth to an ordinary subject so that the rights of the parties should "as nearly as possible be the same" [297] . There are many problems (as the first respondent recognised) in trying to render DHA subject to the RTA by way of the Judiciary Act:

1. First, it must be assumed that DHA is "the Commonwealth" for the purposes of that Act. That assumption is not certain, although, from the context, it seems likely that "the Commonwealth" should be given the same meaning as would be afforded to the words appearing in s 75(iii) of the Constitution [298] . Any other view could present questions as to the constitutional validity of s 64 of the Judiciary Act. Although there are indications in the DHAA that DHA has a measure of independence from the Executive, for reasons analogous to those given in dealing with the supposed implied immunity, I am prepared to assume [299] that DHA, for the purposes of the Judiciary Act, is "the Commonwealth".

2. Similarly, and contrary to the concession made for the Tribunal [300] , I would be prepared to take a broad view of the word "suit" as it appears in s 64. There is support, in other contexts, for adopting such a view [301] . The definition in s 2 of the Judiciary Act is wide enough ("includes any action or original proceeding between parties").

3. I might even be prepared to classify a claim against the Commonwealth (DHA), relying upon the provision of the RTA which the second respondents invoked, as a "claim in contract" within s 56 of the Judiciary Act. One could arguably do so upon the footing that the relevant provisions of the RTA elaborated, and were by statute incorporated into, the contract of lease [302] . There are real problems in making this assumption. This is particularly so when the second respondents seek to take the next step and to invoke the jurisdiction of the Tribunal.

4. The attempt to call in aid the Judiciary Act to sustain the jurisdiction of the Tribunal then runs into fatal problems. So far as s 64 of the Judiciary Act is concerned, it contemplates that the resolution of the suit "to which the Commonwealth is a party" will be a "judgment". When the bodies to which the Commonwealth may be brought, and rendered accountable in law, are examined, they are confined by s 56(1) of the Judiciary Act to this Court (as s 75(iii) of the Constitution requires) and: (b) If the claim arose in a State - in the Supreme Court of that State or in any other court of competent jurisdiction of that State Such bodies may indeed give a "judgment". However, although the Tribunal may be a body of competent jurisdiction, it is not a "court". And it may not give a "judgment" [303] .

1. See ss 56, 64; Hogg, Liability of the Crown, 2nd ed (1989), pp 80-84. 2. Judiciary Act, s 64. 3. cf China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 223-224 4. As McHugh JA was of the Australian Postal Commission in Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604see also Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334 at 338 5. And the State of New South Wales. 6. See, eg, Tana v Baxter (1986) 160 CLR 572 at 577-578, 582; Minister for Youth and Community Services v Health & Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 548, 559-560. 7. See also Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604, per McHugh JA. 8. Shell Co of Australia v Federal Commissioner of Taxation [1931] AC 275 at 297 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373-378, 388; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267-269

Reinforcement for this construction of the Judiciary Act may be found in the language of ss 79 and 80 of that Act. In so far as State laws and the common law are to apply, they are to do so only in "courts exercising federal jurisdiction". There is no basis for extending these provisions to bodies which are not courts, such as the Tribunal.

I agree that the growth of statutory rights, limitations upon the jurisdiction of the general courts and the creation of specialised tribunals, federal and state, all present a number of difficulties to citizens when dealing with the Commonwealth or one of its many emanations or manifestations. Particularly as federal statutory authorities and companies are established to perform functions formerly discharged by the Commonwealth itself, it is inconvenient and potentially unjust to deprive those dealing with such bodies of the ordinary rights and remedies which would otherwise by law apply. In Whiteford v The Commonwealth [304] in the New South Wales Court of Appeal I was influenced by these considerations to suggest that the Commonwealth itself would be amenable to proceeding before the Tribunal. However, the difficulties presented by s 56 of the Judiciary Act were not then sufficiently considered by me. If the entitlement to render the Commonwealth answerable to a "suit" in the Tribunal is not afforded by the terms of the Constitution or the Judiciary Act, how else does it arise? In the case of some statutory corporations, with a high measure of independence, it is possible that they could be treated as separate from the Commonwealth and assimilated to an ordinary person. But not in the case of DHA, given its functions and the substantial measure of ministerial control and superintendence to which it is subjected by the DHAA.

This conclusion says nothing about other remedies which might be available to the second respondents against DHA, relying on their contract of lease and its express or implied terms. DHA, in its own documentation, concedes that landlords, such as the second respondents, would have certain rights of inspection. Under appropriate conditions, a right to a key might also be implied. But for such rights, the second respondents cannot rely upon the RTA. Nor can they render DHA answerable to proceedings in, and orders of, the Tribunal. The RTA has no application to their contract of lease for that lease is governed by federal law. The Tribunal has no jurisdiction. Notwithstanding my opinion in Whiteford , which I am now disposed to think was wrongly decided in this respect, any proceeding by the second respondents suing DHA must be brought in this Court or in a competent State court exercising federal jurisdiction. It cannot proceed in the Tribunal.

The order nisi for prohibition should be made absolute. The respondents should pay the prosecutor's costs.