State Authorities Superannuation Board v Commissioner of State Taxation

High Court of Australia|1996-11-21|Before: Brennan CJ, Gummow JJ, Gaudron JJ, Nicholson J

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32

21 November 1996 Brennan CJ, Dawson, Toohey and Gaudron JJ.

These proceedings raise the question whether the Commissioner of State Taxation for the State of Western Australia was entitled to assess stamp duty under the Stamp Act 1921 WA upon a written agreement for the purchase by the State Authorities Superannuation Board (the SASB) of an undivided half interest in a property situated in Perth in Western Australia. The SASB is a New South Wales corporation which was constituted under the Superannuation Administration Act 1987 NSW and continued under the Superannuation Administration Act 1991 NSW [1] . Under s 4(2) of the Superannuation Administration Act 1987 the SASB "is, for the purposes of any Act, a statutory body representing the Crown". By virtue of the Interpretation Act 1987 NSW, that reference to "the Crown" is a reference to the Crown in right of New South Wales (s 13(b)) and "Act" means an Act of the New South Wales legislature (s 65).

The Superannuation Administration Act 1987 NSW was repealed by the Superannuation Administration Act 1991 NSW which came into force on 2 March 1992. The events in question in these proceedings took place before that date so that the applicable provisions are contained in the 1987 Act.

On 9 December 1991, the SASB entered into an agreement in writing with QV1 Pty Ltd to purchase from it an undivided half interest in the Perth property. The purchaser of the other half interest under another agreement was Telfirst Pty Ltd. By a notice of assessment bearing the date 24 December 1991, the Commissioner assessed the total stamp duty payable in respect of both agreements at $14,406,051. The notice stated that the stamp duty was payable pursuant to ss 16(1) and 75AF of the Stamp Act. Section 16(1) provides for stamp duties to be charged in respect of instruments specified in the Sch 2 to the Act, which include a conveyance or transfer on the sale of property. Section 74(1) provides that every contract or agreement for the sale of any estate or interest in property shall be charged the same ad valorem duty to be paid by the purchaser as if it were an actual conveyance on sale of the estate, interest or property contracted or agreed to be sold. Section 75AF provides for apportionment of duty where more than one instrument records substantially the one transaction.

As a consequence of the notice of assessment and without admission as to its validity, the SASB paid to the Commissioner the sum of $7,203,025.50, being half the sum of $14,406,051.

By a notice of objection dated 31 January 1992, the SASB objected to the assessment on grounds including the ground that the duty payable had been wrongly calculated and the further ground that:

SASB represents the Crown in right of the State of New South Wales, or is an instrumentality of the Crown in right of the State of New South Wales, and is entitled to the immunities and exemptions of the Crown in right of that State.

The [Stamp] Act does not purport to impose any liability on the Crown in right of the State of New South Wales, or an instrumentality of the Crown in right of the State of New South Wales, where it is a party to an instrument and would otherwise be liable to pay the duty assessed on the instrument. Accordingly, the SASB Agreement is not liable to stamp duty under the [Stamp] Act.

The Commissioner allowed the ground of objection concerning the miscalculation of duty and amended the sum of $14,406,051 to $13,006,096.75. He refunded to the SASB the sum of $699,977.12 plus interest at the rate of 12 per cent per annum in the sum of $37,408.62. However, he rejected the further ground of objection and refuses to refund to the SASB the sum of $6,503,048.37, which he retains.

Section 33 of the Stamp Act provides for an appeal to the Supreme Court of Western Australia by a person dissatisfied with the decision of the Commissioner on an objection. Pursuant to that section the SASB appealed to the Supreme Court. It also instituted proceedings against the Commissioner in this Court upon the basis that the proceedings lay within the Court's original jurisdiction, being a matter between States [2] . That jurisdiction is, subject to s 44 of the Judiciary Act 1903 Cth, made exclusive of State jurisdiction by s 38(b) of that Act. The second set of proceedings was, by consent, remitted to the Supreme Court of Western Australia pursuant to s 44. Both matters were heard in that Court by Nicholson J who dismissed both the appeal and the action. Appeals to the Full Court of the Supreme Court of Western Australia were instituted by the SASB in each matter and orders for the removal to this Court of both appeals were made pursuant to s 40(1) of the Judiciary Act.

The SASB argues that the provisions of the Western Australian Stamp Act do not, as a matter of construction, apply to it because it represents the Crown in right of New South Wales. The Commissioner, on the other hand, argues that, save for any exemption, the provisions of the Stamp Act apply to all instruments specified in the Act, whether or not the Crown in any capacity is a party. Upon that view, the argument continues, the significant exemption in favour of the Crown is in respect of certain instruments under s 119(1), and that exemption is expressed to be in favour of the Crown in right of Western Australia only. That is because under s 4(1) of the Stamp Act "the Crown" means the Crown in right of Western Australia. In the event of his first argument not succeeding, the Commissioner contends that the SASB does not enjoy the immunity of the Crown in right of New South Wales, either because it is not the Crown or the servant or agent of the Crown or because s 64 of the Judiciary Act requires that, in any suit to which the Commonwealth or a State is a party, the rights of the parties shall as nearly as possible be the same as in a suit between subject and subject. In relation to that argument, the SASB contends that the sole source of legislative power for the enactment of s 64 is s 78 of the Constitution which gives the Commonwealth Parliament power to make laws conferring rights to proceed against the Commonwealth or State in respect of matters within the limits of judicial power. The SASB says that it is an applicant for relief and no question arises of conferring rights to proceed against it so that s 64 of the Judiciary Act does not apply or is beyond power to the extent that it purports to apply in the present proceedings.

If the Commissioner is correct in his first argument that the Stamp Act binds the SASB whether or not it enjoys the status of the Crown or a Crown servant or agent, we do not reach the arguments concerning s 64 of the Judiciary Act. It is, therefore, convenient to turn immediately to the application of the Stamp Act.

(1) If the Crown or any Crown instrumentality, agent of the Crown or Government authority designated by the Minister by notice published in the Government Gazette or a local authority, as party to any such instrument as is according to the express provisions of this Act liable to duty, occupies the position of the party or one of the parties who, in accordance with such provisions, might be compelled to pay the duty or would be liable to a penalty on failure to stamp the instrument as in this Act provided or on issuing or executing the instrument unstamped, then the instrument and every duplicate thereof shall, by virtue of this section, be exempt from duty.

(1a) Subsection (1) does not apply to a local authority when acting in its capacity as the trustee of a superannuation fund.

(2) When the Minister has under subsection (1) designated any Crown instrumentality, agent of the Crown or Government authority he may by notice published in the Government Gazette amend or revoke that designation.

(3) Subsection (1) shall not apply to an instrument to which section 83(2) applies if the Crown or any Crown instrumentality, agent of the Crown or Government authority designated by the Minister, or a local authority is a mortgagee or obligee of such instrument.

A number of things may be noted about s 119. First, it recognises that it is an instrument which is liable to duty. Thus, it speaks of "such instrument as is liable to duty". It then refers to the position of a party to the instrument who, under the provisions of the Act, might be compelled to pay the duty or might be liable to a penalty for failure to stamp the instrument. If the Crown is in that position it is the instrument, not the Crown, which is exempt from duty. In these respects, the section proceeds in accordance with the traditional scheme of stamp duties legislation which was described by O'Connor J in Cobar Corporation Ltd v Attorney-General (NSW) [3] : The scheme, following that of English legislation on the subject, is not to impose a duty in respect of which a liability to pay is created, but to make it to the interest of every person who executes an instrument or is interested under an instrument that it should be stamped. The instrument, if not stamped, confers no rights and imposes no obligations which can be enforced in a Court of Justice. It cannot be registered. If the instrument is not stamped within a certain time, a fine of 20 per cent is imposed, and the person failing to stamp it, or the person who seeks to use it unstamped, is liable to pay the penalty. The scheme of the Act is to rely upon these inducements appealing to the self interest of persons executing or taking advantage of the instrument. 1. (1909) 9 CLR 378 at 393. See also Rosehill Racecourse Co v Commissioner of Stamp Duties (NSW) (1905) 3 CLR 393 at 398; Dent v Moore (1919) 26 CLR 316 at 326-327; Commissioner of Stamp Duties (Q) v Hopkins (1945) 71 CLR 351 at 360; Oughtred v Inland Revenue Commissioners [1960] AC 206 at 227; Associated Steamships Pty Ltd v Western Australia (1969) 120 CLR 92 at 103; DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431 at 449; Comptroller of Stamps (Vict) v Ashwick (Vic) No 4 Pty Ltd (1987) 163 CLR 640 at 654.

That scheme (although not without modification) is followed in the Stamp Act and, indeed, it was effective in the present case for it would appear likely that the reason SASB paid the duty was to obtain registration of its dealing in the property in question. Section 16 imposes duties "on or in respect of" specified instruments. Under s 17, all duties chargeable may, subject to the Act, be denoted by stamps. Instruments not stamped in accordance with the Act are, by s 27, made inadmissible in proceedings other than criminal proceedings unless, pursuant to s 29, the amount of unpaid duty and any fine is paid. Section 28 forbids the registration of an instrument unless the original or a copy has been duly stamped. The liability to stamp duty arises when an instrument of the kind which attracts a charge is executed (s 20). An instrument may be stamped within a specified period after execution but if it is presented for stamping after the expiration of that time it will, under s 20(2) and (3), be charged with a fine.

Under s 39(1) persons specified in the Sch 2 to the Act are liable to pay the amount of duty charged upon a particular instrument. If the duty chargeable on the instrument is not duly paid by the specified person or, where no person is specified, by the party to the instrument by whom or on whose behalf it is held (sub-s (4)), under sub-s (1a) that person:

(i) any penalty imposed in respect of the offence referred to in paragraph (c); and

(ii) the duty payable in respect of that instrument, to pay the amount of the fine or fines charged under section 20 (2) or (3) or 20 (2) and (3), as the case requires.

It is because of the operation of these provisions, which fasten upon documents, rather than transactions, that it is said that stamp duties are payable on documents, not transactions. That principle stands, notwithstanding that under s 39A(1) unpaid duties or fines are recoverable as debts due to the Crown. It is true that the recovery of unpaid duties or fines as debts due to the Crown is direct and in contrast to the other indirect inducements to pay, for which the Act provides. But the liability to pay nevertheless originates in the execution of an instrument and not in the transaction underlying the instrument.

The important thing for present purposes is that s 119 assumes that instruments to which the Crown is a party otherwise attract stamp duty and makes provision to exempt from duty such of those instruments as it specifies. Thus the exemption which the section confers is not complete. Under sub-s (2) when the Minister has designated a Crown instrumentality, agent of the Crown or Government authority, he may revoke the designation so rendering an instrument to which that instrumentality is a party liable to duty. And under sub-s (3) the exemption under sub-s (1) of an instrument to which s 83(2) applies is removed where the Crown is a party in specified capacities. Section 83(2) applies to instruments by way of security, such as mortgages, where the total amount secured is not limited, and provides a method for the calculation of ad valorem duty. Section 119(3) says that such instruments shall not be exempted where the Crown is a mortgagee or obligee of such an instrument. Quite plainly sub-ss (2) and (3) of s 119, in limiting the exemption otherwise provided by the section, proceed upon the basis that, by doing so, the instruments to which they refer will attract duty notwithstanding that the Crown is a party to them.

Exemptions of a like kind are to be seen in the Sch 3 to the Stamp Act. Section 16(2) of the Act provides that the duties specified in the Sch 2 shall be subject to the exemptions specified in the Sch 3. Certain exemptions in the Sch 3 apply to the Crown and are only explicable upon the ground that it was intended that otherwise instruments to which the Crown, including the Crown other than in right of Western Australia, was a party, would be liable to duty and that the Crown in some cases would be liable to pay the duty [4] .

See Sch 3, Items 1(4)(c), 2(1), 2(5), 2(6), 6(1), 7(6), 8(3a)(a).

It is not surprising that such assumptions are made in the Stamp Act [5] . For over a century stamp duties have been imposed on instruments relating to Crown property [6] . The English Stamp Act 1891, which provided a model for the Western Australian legislation, contained in s 119 the following provision:

Except where express provision to the contrary is made by this or any other Act, an instrument relating to property belonging to the Crown, or being the private property of the sovereign, is to be charged with the same duty as an instrument of the same kind relating to property belonging to a subject. Whilst the Stamp Act contains no such express provision, it is plain, for the reasons which we have given, that it was intended to have that effect. Moreover, the history of stamp duties reveals that originally certain types of transactions were required to be written only on vellum, parchment or paper [7] which had previously been stamped and it is apparent from these beginnings why the Crown should be bound. The identity of those executing the document was not then relevant to the liability to duty. As Latham CJ put it in Commissioner of Stamp Duties (Q) v Hopkins [8] : "The liability to duty depended upon the character of the instrument, irrespective of its execution." 1. The same assumption was made by s 77 of the Crown Lands Act 1829 UK (repealed by s 16(1) of the Crown Lands Act 1927 UK) which exempted from stamp duty instruments relating to dealings in land to which The Commissioners of His Majesty's Woods, Forests, and Land Revenues - later known as the Commissioners of Crown Lands - were parties. 2. See Halsbury's Laws of England, 4th ed, vol 44(1), par 1001. 3. See 5 & 6 Will & Mar c 21 (1694). 4. (1945) 71 CLR 351 at 359.

In any event, by the exemptions which it grants in favour of the Crown, the Stamp Act manifests a clear intention that the Crown should be otherwise bound by its provisions, save to the extent that it creates a criminal offence in relation to the non-payment of duty, a matter to which we shall turn shortly. It is now settled by Bropho v Western Australia [9] that the presumption that a statute is not intended to bind the Crown does not prevail against an intention to the contrary, notwithstanding that it cannot be said that the intention is "manifest from the very terms" of the statute or that the purpose of the statute would be "wholly frustrated" [10] . If a legislative intent that the Crown should be bound does appear from the provisions of a statute then it should be given effect. Apart from the specific exemptions provided, and to a large extent because of them, such an intent appears, in our view, from the provisions of the Stamp Act. Since it is apparent that the Stamp Act was not drafted in reliance upon the strict rule of construction which was applied before the decision in Bropho, there is no difficulty in approaching the construction of the Act in the more flexible manner laid down in that case.

(1990) 171 CLR 1. See also Jacobsen v Rogers (1995) 182 CLR 572. 2. Bropho (1990) 171 CLR 1 at 17.

Different considerations apply in respect of the offence created by s 39(1a) of the Stamp Act. That offence occurs when there is a failure to present an instrument for stamping or to pay the duty chargeable on it within the requisite period. An intention that the Crown should not be bound by that provision is manifested, not by the application of a presumption of the kind discussed in Bropho, but by a different presumption based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty.

the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature. It is opposed to all our conceptions, constitutional, legal and historical. Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them. But we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course. There is no clear indication in the Stamp Act that the legislature intended by s 39(1a) to create an offence of which the Crown could be guilty. Indeed, the Act is silent upon the matter and those who would contend to the contrary must rely only upon the generality of s 39(1a). In those circumstances the only conclusion possible is that s 39(1a) of the Stamp Act does not bind the Crown. There is no difficulty in reaching that conclusion and at the same time concluding that the Act otherwise does bind the Crown. The principle that the Crown cannot be made criminally liable save in the most exceptional circumstances has no application other than to s 39(1a) of the Act and is not inconsistent with the rest of the Act being given an operation so as to bind the Crown. 1. (1946) 72 CLR 409 at 424.

That is sufficient to dispose of both of the matters before the Court. Whether or not the SASB is the Crown for the purpose of determining liability for the payment of stamp duty under the Stamp Act is immaterial because even if it is, the provisions of the Stamp Act bind it, save for any relevant exemptions and s 39(1a). No argument was advanced that there is any constitutional impediment to the Crown in right of one State imposing liability by way of a stamp duty upon the Crown in right of another State. There is no provision as between States such as s 114 of the Constitution which forbids a State from imposing a tax on Commonwealth property or the Commonwealth from imposing a tax on State property. No doubt there remain territorial limitations upon the legislative powers of the States which arise from the federal structure of which each State is a part. That was recognised in Union Steamship Co of Australia Pty Ltd v King [12] where it was said by the whole Court:

And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 Cth, s 2(1); Australia Act 1986 UK, s 2(1). However, no suggestion was made in this case that the Stamp Act lacked a sufficient connection with Western Australia even if its application extended to instruments recording dealings by the Crown in right of New South Wales involving property within the State of Western Australia. Indeed, whatever the territorial limits upon the legislative power of the Western Australian legislature might otherwise be, it could hardly be suggested that it does not extend to such matters. 1. (1988) 166 CLR 1 at 14.

Since Nicholson J concluded that the duty assessed by the Commissioner was payable upon the agreement by the SASB to purchase a half interest in the Western Australian property, the appeal against his decision in each matter must be dismissed. It is unnecessary to determine whether the proceeding by way of appeal against the decisions of the Commissioner under s 33 of the Stamp Act was a suit between States within the meaning of s 38(b) of the Judiciary Act. Section 38(b) makes the jurisdiction conferred upon the High Court by s 75(iv) of the Constitution in matters between States exclusive of the jurisdiction of State Courts, at least to the extent that such matters constitute "suits between States". The power to so legislate is derived from s 77(ii) of the Constitution which empowers the Commonwealth Parliament to make laws defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

It was in effect conceded before us that the Commissioner was, for the purpose of both the action and the appeal, the State of Western Australia within the meaning of s 75(iv). Even if that concession be correct and assuming the SASB to be the State of New South Wales [13] , it does not seem to us to follow without question that the appeal under s 33 of the Stamp Act was a suit between States. That appeal constitutes part of the mechanism provided by the Stamp Act, that is to say, laid down by the State legislature, for finally determining an objection to an assessment made by the Commissioner. In that sense, the appeal by the SASB against the Commissioner's decision may perhaps be regarded as no more a suit between States than the contest constituted by the lodgment of the objection. It may also be observed that if a different view is taken a curious result ensues. If the appeal under s 33 of the Stamp Act is a suit between States, then it may be said it is that suit, that is to say, the appeal, which is within the exclusive jurisdiction of the High Court under s 38(b) of the Judiciary Act, notwithstanding that s 33 confers no jurisdiction on the High Court to hear such an appeal. Apparently that is not the analysis which resulted in the SASB commencing the action in the High Court because that action is not by way of appeal from the Commissioner's decision but is constituted by a claim for declarations and the payment of a sum of money. Clearly, upon the assumption that the parties are States, the action so commenced is a suit between States and within the exclusive jurisdiction of the High Court, but it is at least arguable that it is a proceeding which is different from an appeal instituted under s 33 of the Stamp Act [14] . Such an appeal is more in the nature of a review of the Commissioner's decision under a procedure provided by the legislation of one of the parties, than a suit between States. However, it is unnecessary to determine these questions, particularly as argument was not addressed to them. It is sufficient that both appeals be dismissed. We would so order.

cf State Bank of NSW v Commonwealth Savings Bank of Australia (1986) 161 CLR 639. 2. Little help is to be derived from the definition of suit in s 2 of the Judiciary Act. There it is defined to include "any action or original proceeding between parties". McHugh and Gummow JJ.

On 5 May 1995 this Court, on the application of the Attorney-General for New South Wales pursuant to s 40(1) of the Judiciary Act 1903 Cth, removed the whole of two causes pending in the Full Court of the Supreme Court of Western Australia. Each cause in the Full Court is an appeal against the dismissal by the Supreme Court of Western Australia (Nicholson J) of a proceeding brought by the State Authorities Superannuation Board (the SASB) against the Commissioner of State Taxation for the State of Western Australia (the Commissioner). The SASB is a corporation which was constituted by the Superannuation Administration Act 1987 NSW (the 1987 Act) and is continued by the Superannuation Administration Act 1991 NSW (the 1991 Act). The Commissioner holds office under the Public Service Act 1978 WA and s 5 of the Stamp Act 1921 WA entrusts the Commissioner with "the general administration" of the statute.

In the first cause, Nicholson J dismissed an appeal by the SASB from an assessment of stamp duty. The appeal had been brought pursuant to s 33 of the Stamp Act, which provides for an appeal to the Supreme Court by a person dissatisfied with the decision of the Commissioner on an objection to an assessment. His Honour heard this appeal together with the second cause, an action between the same parties which had been commenced in this Court but remitted by consent order made 7 October 1992, under s 44 of the Judiciary Act, to the Supreme Court of Western Australia. This action had been commenced in the High Court on the footing that it was a suit between two States and therefore, by operation of s 38(b) of the Judiciary Act, within the exclusive jurisdiction of this Court. Section 38(b) applies to matters which are "suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State". There has been no dispute that the Commissioner is in the relevant sense "a State". There is a live issue as to the characterisation of the SASB.

Nicholson J dismissed both the appeal and the action and it was from these decisions that the SASB instituted the pending appeals to the Full Court.

At issue is the liability of the SASB as purchaser under an agreement to purchase real estate in Perth to pay stamp duty assessed under the Stamp Act. On 9 December 1991, the SASB entered into a written agreement (the Sale Agreement) with QV1 Pty Ltd as vendor to purchase an undivided half interest in the land and improvements comprising the QV1 office tower and carpark development in Perth (the Property), together with certain chattels. There was another sale agreement in respect of the other undivided one-half interest in the Property whereunder the purchaser was Telfirst Pty Ltd.

Section 74(1) and (4) of the Stamp Act provides that every contract or agreement for the sale of any estate or interest in property shall be charged with the same ad valorem duty to be paid by the purchaser as if it were an actual conveyance on the sale, and that, when such duty has been paid, the conveyance or transfer shall not be liable to further duty. In Sch 2, the person shown as "liable to pay duty" in respect of a conveyance or transfer on sale of property is "[t]he purchaser".

(1) Where several instruments to which this section applies together form, or arise from, substantially one transaction, or one series of transactions, those instruments shall be chargeable with ad valorem duty calculated upon the sum of the amounts by reference to which ad valorem duty on each of those instruments would, but for this subsection, have been calculated, and that duty shall be apportioned to the various instruments as determined by the Commissioner.

Section 31 provides for the expression of an opinion by the Commissioner, "of his own volition" or if required by "any other person", on the amount of duty with which an executed instrument is chargeable; having expressed that opinion, the Commissioner shall issue an assessment. Following submission of the two contracts, each for the sale of an undivided half interest in the Property, the Commissioner issued an assessment dated 24 December 1991. This was addressed to the solicitors who had submitted the instruments. The assessment stated that the two contracts "form or substantially arise from substantially one transaction, therefore, the provisions of section 75AF apply". It also stated: "The State Authorities Superannuation Board is not exempt from stamp duty in this State." The assessment was issued in the total sum of $14,406,051. Without admission of liability, the SASB paid to the Commissioner one-half thereof, $7,203,025.50.

The SASB objected to the assessment on several grounds. The Commissioner responded on 3 June 1992. The first ground was allowed, and this resulted in a reduced Notice of Assessment for $13,006,096.75 and a refund to the SASB of $699,977.12, plus interest in the sum of $37,408.62. However, the Commissioner retained the balance of the $7,203,025.50 and refused to refund it to the SASB. This followed, in particular, from the disallowance of the third ground of objection. It is this objection which is of present relevance. It read:

The [Stamp] Act does not purport to impose any liability on the Crown in right of the State of New South Wales, or an instrumentality of the Crown in right of the State of New South Wales, where it is a party to an instrument and would otherwise be liable to pay the duty assessed on the instrument. Accordingly, the [Sale] Agreement is not liable to stamp duty under the [Stamp] Act.

The action in this Court was commenced on 15 July 1992. In it the SASB claimed a declaration that the Sale Agreement between it and QV1 Pty Ltd was not subject to duty and an order that the Commissioner pay to the SASB the sum of $6,503,048.37 together with interest pursuant to s 77MA of the Judiciary Act.

The appeal under s 33 of the Stamp Act was instituted on 26 November 1992. As we have indicated, this appeal and the action remitted by this Court were heard together by Nicholson J and, on 17 June 1994, his Honour entered judgment in the action for the Commissioner, and dismissed the appeal under the Stamp Act.

In our view the Commissioner has succeeded in demonstrating that the Sale Agreement was subject to the duty as assessed and accordingly the appeals should be dismissed.

In broad outline, the scheme of the Stamp Act represents a stage of development of stamp duty law found elsewhere in Australia. As is outlined in the judgments in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [15] , with reference to the South Australian legislation, recovery of the duty, with payment by parties to the relevant instrument or, indeed, by third parties, is encouraged or enforced by a variety of measures. In Western Australia, first, there is imposition of the duty (s 16); secondly, there is creation of a liability to pay the duty and provision for recovery of unpaid duty and fines as a debt due to the Crown in right of Western Australia (ss 17, 39A); thirdly, there is the sterilisation of unstamped instruments by rendering them incapable of registration (s 28), and inadmissible in evidence (s 27), so that a third party, as the price of registration or admission into evidence of an instrument upon which that party relies, may need to stamp an instrument, albeit the obligation to pay the duty is imposed by the legislation on another [16] ; and, finally, there is the creation of an offence (s 39) for non-payment by the person relevantly designated in the Sch 2 or by the party to the instrument by whom or on whose behalf it is held.

(1995) 184 CLR 453. 2. See Dent v Moore (1919) 26 CLR 316 at 321-322; In re Sharpe [1944] St R Qd 26 at 31.

It is appropriate at this stage to refer to some of the further principal provisions of the Stamp Act. In s 4(1) the term "the Crown" is defined to mean "the Crown in right of the State". From s 5 of the Interpretation Act 1984 WA it follows that "the State" means the State of Western Australia. Thus, in provisions of the Sch 3 which confer exemptions from duty, the references in pars (5) and (6) of Item 2 to conveyances to the Crown and grants from the Crown plainly refer to the Crown in right of Western Australia. Likewise s 16(1), which provides for the charging of duty "for the use of the Crown" in respect of the instruments specified in the Sch 2. Section 17(1) provides that all duties chargeable upon any instruments are to be paid and denoted according to the provisions of the Stamp Act. Section 27(1) deals with what in argument was called the "sterilising" effect of failure to stamp an instrument as required by the legislation. It provides:

Except as otherwise provided by this Act no instrument chargeable with duty and executed in Western Australia, or relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed. Any unpaid duty or fine may be recovered by the Commissioner in a court of competent jurisdiction as a debt due to the Crown (s 39A). Further, s 39 creates offences in respect of omission to stamp instruments. So far as material, s 39 stated [17] :

(1) The person in that behalf specified in the Second Schedule in respect of any instrument, or in subsection (4), is liable to pay the amount of duty charged on that instrument.

(a) an instrument which is chargeable with duty is not presented for stamping within the period referred to in section 20(1); or

(b) the full amount of duty chargeable on an instrument is not paid within the period, or the extended period, referred to in section 20(3),

the person in that behalf specified in the Second Schedule in respect of the relevant instrument, or in subsection (4) -

(i) any penalty imposed in respect of the offence referred to in paragraph (c); and

(ii) the duty payable in respect of that instrument, to pay the amount of the fine or fines charged under section 20(2) or (3) or 20(2) and (3), as the case requires. [18]

(2) The duty and fine or fines referred to in subsections (1) and (1a) together with any penalty with which conviction of an offence referred to in subsection (1a)(c) is punishable, are recoverable on a complaint laid in the name of the Commissioner in any court of summary jurisdiction.

(4) Except where otherwise provided by this Act, the person liable under this section in respect of the instrument concerned is the party to that instrument by whom or on whose behalf it is held.

(a) to exonerate any other person from any liability imposed on him by or under this Act; or

(b) to exempt any instrument or matter from any duty or disability to which it is liable under this Act.

Section 39(2) was amended by s 8 of the Stamp Amendment Act 1994 WA with effect from 1 September 1994. 2. Section 20 deals with the stamping of instruments after execution and within particular periods; it provides for fines for late presentation for stamping.

It will be noted that s 39 imposes the liability upon the relevant "person". In s 5 of the Interpretation Act, "person" or any word or expression descriptive of a person "includes a public body, company, or association or body of persons, corporate or unincorporate". The reference to a body corporate would include a body incorporated under a law outside Western Australia but recognised as such in Western Australia. Accordingly, it would appear to follow that the SASB would, if constituted by New South Wales law as a corporation, be a body corporate and thus a person for the purposes of s 39 of the Stamp Act.

However, the reasoning of the majority of this Court in Cain v Doyle [19] here becomes important. It was there decided that the principle that the Crown cannot be criminally liable for a supposed wrong "provides a rule of interpretation which must prevail over anything but the clearest expression of intention" [20] . The same presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation [21] . These considerations will be of importance on one branch of the case. It is submitted for SASB that the above reasoning is applicable to SASB with the result that s 39 should not be read as imposing any criminal liability upon it. This is said to support the general conclusion that, for no purpose and by no means, was SASB liable as purchaser for the duty upon the Sale Agreement provided for in the Sch 2 to the Stamp Act. As will appear, we do not accept this final step in the argument. Latham CJ pointed out in Cain v Doyle [22] that the particular statutory regime in question may provide for civil remedies as well as for enforcement by the criminal law; in such a case, on its proper construction, the Crown may be amenable to the civil remedies, albeit immune from prosecution.

(1946) 72 CLR 409. See also Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 24. 2. Cain v Doyle (1946) 72 CLR 409 at 425, per Dixon J; see also at 417-418, per Latham CJ. 3. Bolwell v Australian Telecommunications Commission (1982) 61 FLR 154 at 161-162; 42 ALR 235 at 241; R v Eldorado Nuclear Ltd (1983) 4 DLR (4th) 193 at 206. 4. (1946) 72 CLR 409 at 419; see also at 420-421, per Starke J, and Canadian Broadcasting Corporation v Attorney-General (Ontario) (1959) 16 DLR (2d) 609 at 616, per Rand J.

In this Court, the Solicitor-General for the State of Western Australia, who appears for the Commissioner, refers to s 119 of the Stamp Act as indicative of an exemption conferred to the advantage of the Crown in right of the State of Western Australia but in no other right. Broadly, s 119 exempts from duty certain instruments to which the Crown in right of Western Australia occupies the position of the party or one of the parties who, in accordance with the legislation, might be compelled to pay the duty or would be liable to a penalty on failure to stamp the instrument. The Solicitor-General then submits that, on its true construction, the Stamp Act does not exclude from its application, and so does not "exempt" from duty, instruments executed by the Crown in right of the State of New South Wales, nor any agent or instrumentality of the Crown in right of New South Wales. Further, the Solicitor-General contends that, in any event, the SASB is not the Crown in right of New South Wales nor a servant or instrumentality thereof. Finally, he submits that, if the last submission fails, nevertheless s 64 of the Judiciary Act requires that the liability of the SASB be determined as if it were a subject.

In this Court, the Solicitor-General for the State of New South Wales, who appears for the SASB, makes the primary submissions that (i) the relevant provisions of the Stamp Act do not impose any liability in respect of the Sale Agreement upon the Crown in right of New South Wales and (ii) the SASB "represents the Crown in right of New South Wales".

He also contends that s 64 of the Judiciary Act does not, by force of federal law, mandate any contrary result so as to sustain the imposition of duty. 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 Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

The submissions for the SASB are developed as follows: (i) the SASB is an applicant for relief, not a party against whom any right to proceed is asserted, (ii) s 78 of the Constitution therefore does not apply and s 64 has to be read accordingly, (iii) no provision of federal law confers "rights to proceed" on the SASB in the action in question, (iv) if s 64 did apply, it would operate as a Commonwealth law imposing a tax on property belonging to the State of New South Wales and, to that extent, contravene s 114 of the Constitution, and (v) if, on its proper construction, s 64 did apply, it would to that extent not be supported by s 78 or any other provision in the Constitution, with the result that in that operation it would be invalid.

In our view, the SASB fails in the first of its primary submissions. The result is that it will be unnecessary to determine the dispute as to the operation of s 64 of the Judiciary Act for which the Commissioner alternatively contends.

Before turning to consider the submissions as to the status of the SASB and the reach of the legislation of Western Australia, something should be said of the legal character given the SASB by the constituent New South Wales legislation. This is the 1987 Act and the 1991 Act.

The 1987 Act was repealed on the commencement on 2 March 1992 of the operative provisions of the 1991 Act. Section 4 of the 1991 Act continued the SASB in existence. Sections 5 and 6 changed the provisions for the composition and procedure of the Board, and for the general functions of the Board. However, the events giving rise to the contested liability to Western Australian stamp duty occurred before 2 March 1992. Hence, the characterisation of the SASB is to be assessed by regard to the law in force before 2 March 1992.

The general functions of the SASB included the functions conferred or imposed on it by or under a number of New South Wales statutes identified in s 14 of the 1987 Act as "associated Acts". These established various superannuation schemes for public sector employees. Section 20 empowered the SASB, subject to and in accordance with any regulations made under the statute, to take such steps as were appropriate to establish one or more funds into which might be paid, at the request of the person entitled to it, the whole or part of any benefit payable under any of the superannuation schemes managed by the SASB. The SASB was authorised by s 19 to pool funds managed by it and, by s 18, to obtain financial accommodation, effect financial adjustments and make investments under and subject to the Public Authorities (Financial Arrangements) Act 1987 NSW (the Financial Arrangements Act). The effect of s 24 and Pt 4 of Sch 4 of the Financial Arrangements Act was the conferral upon the SASB of a power to make investments of any kind.

Section 28(3) of the 1987 Act stated that nothing in that section constituted the SASB a trustee of a fund or implied that the SASB was trustee of a fund [23] . The effect of s 28(2) was to affirm that, to the extent to which the powers conferred on the SASB by the 1987 Act otherwise would be restricted by the Trustee Act 1925 NSW or by any other law relating to trusts or trustees, the powers of the SASB are not so restricted. Finally, to the extent, if any, to which the SASB otherwise would not have in relation to any fund managed by it the powers it would have if it were a trustee thereof, it was given those powers by s 28(1). The result was to give to the SASB the powers of a trustee but not so as to restrict its powers to the powers of a trustee and not so as to constitute it a trustee of any fund.

cf Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 161-168, 180, 187-188.

(1) There is constituted by this Act a corporation with the corporate name of the State Authorities Superannuation Board.

(2) The Board is, for the purposes of any Act, a statutory body representing the Crown.

(3) The Board shall consist of 10 members who shall be appointed by the Governor on the nomination of the Minister.

(4) Of the members, 5 shall be appointed to represent employers and 5 shall be appointed to represent employees.

(5) Schedule 1 has effect with respect to the members.

(6) Schedule 2 has effect with respect to the procedure of the Board. (Emphasis added.)

Section 4 of the 1987 Act had, as its primary operation, the constitution of the SASB as a corporation, and it also, to the limited extent we will describe, classified it as "representative" of the Crown, albeit not the Crown itself.

The reference in s 4(2) to "the Crown" is to the Crown in right of New South Wales (Interpretation Act 1987 NSW, s 13(b)) and that to "the purposes of any Act" is a reference to any enactment of the New South Wales legislature (Interpretation Act 1987 NSW, s 65). It will be apparent that the effect of s 4(2) was not to render the SASB the representative of the Crown for all purposes, still less to deem it to be the Crown [24] . For example, the legislation did not confer upon the SASB what Chitty classified as the prerogatives as to the Revenue [25] , including the prerogative in relation to Crown debts and the taking of assignments [26] . Rather, the legislation performed the more limited office of rendering the SASB a statutory body "representing" the Crown in right of New South Wales and this "for the purposes of" any New South Wales statute.

cf Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 386-388, per Williams, Webb and Taylor JJ. 2. Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820), Ch XI. 3. See Ling v The Commonwealth (1994) 51 FCR 88 at 92-94.

Kitto J explained in Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [27] that the phrase "representing the Crown" does not of itself necessarily convey any clear meaning. The question is not really one of attribution of the status of Crown representative; rather, it concerns the relationship of the entity in question to the Crown in respect of the particular matter in which the impact of the relevant provisions is incurred.

The phrase "representing the Crown" does appear in the Crown Proceedings Act 1988 NSW in a fashion which indicates a particular operation of the classification of the SASB as a statutory body representing the Crown. The Crown Proceedings Act repealed (s 10) the Claims against the Government and Crown Suits Act 1912 NSW, which had been in force at the time of the decision of this Court in Maguire v Simpson [28] . In s 3 of the Crown Proceedings Act the term "Crown" is defined as meaning the Crown in right of New South Wales and as including:

(b) a Minister of the Crown in right of New South Wales; and

Section 5(1) of the Crown Proceedings Act enables civil proceedings, other than proceedings against a statutory corporation representing the Crown, to be brought against the Crown, in any competent court, under the title "State of New South Wales". Section 5(2) may be compared with s 64 of the Judiciary Act. It provides: Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject. Section 4 deals with the Crown as plaintiff. It states: The Crown may bring civil proceedings under the title "State of New South Wales" against any person in any competent court. Notwithstanding this, the action commenced in this Court and remitted to the Supreme Court of Western Australia was brought in the name of the SASB. 1. (1977) 139 CLR 362.

Section 6 of the 1987 Act provided, on and after 1 April 1990, for appointment of members to the SASB on a full-time or part-time basis. Part-time members might be reappointed but the maximum period of any one period of appointment was seven years (Sch 1, cl 3). They were subject to removal from office at any time by the Governor (Sch 1, cl 6(3)). The employment of full-time members was subject to Pt 2A of the Public Sector Management Act 1988 NSW. Part 2A (ss 42A-42Z) of that statute is headed "Public Sector Executives". Section 42Q made particular provision for removal by the Governor of "an executive officer" from "an executive position" [29] . Section 38 of the 1987 Act produced the result that the remuneration of senior officers of the SASB was governed by the Statutory and Other Offices Remuneration Act 1975 NSW.

These terms are defined in s 3 and s 42A of the Public Sector Management Act 1988 NSW.

The SASB was a statutory body to which there applied Div 3 of Pt 3 (ss 39-43A) of the Public Finance and Audit Act 1983 NSW and, accordingly, the accounts and records of or relating to the SASB and records of and relating to (i) assets of or in the custody of the SASB or (ii) liabilities of the SASB, were subject to inspection and audit by the Auditor-General and a report by the Auditor-General to the SASB, the Minister and the Treasurer (s 43).

The Solicitor-General for New South Wales, as we understood it, at least in the course of argument, accepted the accuracy of the description of the SASB as representing the Crown "for the purposes of" local statutes, and contended that this was sufficient for the objectives of his argument. To that end the Solicitor-General submitted that the phrase in s 4(2), "for the purposes of any Act", included the purposes of the 1987 Act itself. Those purposes included the making of investments within and outside the State of New South Wales. Thus, the purchase of the undivided one-half share in the Property by the Sale Agreement which attracted assessment by the Commissioner was a transaction effected for the purposes of the constituent statute of the SASB. Therefore, counsel submitted, in taking the steps involved, including entry into and performance of the Sale Agreement, the SASB was, by force of s 4(2), a statutory body representing the Crown in right of New South Wales. To that classification, it was said, the law in Western Australia would give recognition. This included the benefit of what was said to be the presumption that the Stamp Act was not intended to bind "the Crown in right of" the other polities forming the federation.

The Solicitor-General also submitted that the SASB "represents the Crown in right of New South Wales" so as to render it a "State" thereby attracting, in the action in this Court against the Commissioner, s 75(iv) of the Constitution.

However, the question whether the SASB is "a State" within the meaning of s 75(iv) of the Constitution is not answered by showing that it is the Crown "in right of" the State of New South Wales; nor is it determined by asking whether the SASB is entitled to "the privileges and immunities of the Crown" or to the "shield of the Crown", as discussed in such authorities as Townsville Hospitals Board v Townsville City Council [30] . That neither criterion applies in construing the meaning of a constitutional term "State" as it appears in such provisions as s 75 and s 114 of the Constitution is confirmed in the joint judgment of all members of this Court in Deputy Commissioner of Taxation v State Bank (NSW) [31] .

(1982) 149 CLR 282 at 288. 2. (1992) 174 CLR 219 at 229-230.

Their Honours there referred to the well-known exposition of the constitutional concept of "a State" which was given by Dixon J in Bank of NSW v The Commonwealth [32] and applied in Crouch v Commissioner for Railways (Q) [33] . In the latter case, this Court determined that the Queensland Commissioner for Railways, a corporation sole created by the Railways Act 1914 Q, was the emanation by which the State of Queensland discharged its governmental activities in relation to railways. The result was that an action against the Commissioner for Railways was a matter against the State of Queensland for the purposes of s 75(iv).

(1948) 76 CLR 1 at 363. 2. (1985) 159 CLR 22 at 28-29, 39.

In the former case, Dixon J emphasised that, from beginning to end, the Constitution treats the Commonwealth and the States as organisations or institutions of government possessing distinct individualities so that, whilst formally they may not be juristic persons, they are conceived as politically organised bodies having mutual legal relations and amenable to the jurisdiction of courts exercising federal jurisdiction.

In Deputy Commissioner of Taxation v State Bank (NSW) [34] , the Court said:

The "shield of the Crown" doctrine has evolved as a means of ascertaining whether an agency or instrumentality "represents" the Crown for the purpose of determining whether that agency or instrumentality is bound by a statute enacted by the legislature. The doctrine is in essence an aid to the process of statutory interpretation whereby the courts seek to ascertain the legislative intent of Parliament. Hence it has been said that an agency or instrumentality may be endowed with the attributes of the Crown for one purpose but not for others. Indeed, the legislature could explicitly endow a private corporation carrying on business for private purposes with the privileges and immunities of the Crown, yet that private corporation would not answer the description of "a State" for constitutional purposes. The question which arises here is not to be answered by reference to a doctrine which has evolved with the object of answering questions of a different kind. How then stands the SASB? 1. (1992) 174 CLR 219 at 230.

In New South Wales, since at least the Superannuation Act 1864 NSW [35] , that is to say well before federation, legislative provision has been made for the allowance of superannuation for the civil service and for the management of the funds out of which such payments were to be made. A "State Provident Fund" was established by Pt 2 (ss 4-10) of the Superannuation Act 1916 NSW. At federation, the Constitution made specific provision (s 84) to protect what now would be called the "portability" of the rights to pensions and retiring allowances of State public servants who were transferred to the public service of the Commonwealth.

27 Vict 11. See also Superannuation Act Repeal Act 1873 NSW (36 Vict 29), Civil Service Act 1884 NSW (48 Vict 24), Public Service Act 1895 NSW (59 Vict 25).

In Deputy Commissioner of Taxation v State Bank (NSW) [36] , all the members of this Court said:

Once it is accepted that the Constitution refers to the Commonwealth and the States as organisations or institutions of government in accordance with the conceptions of ordinary life, it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities of government. The Court went on to give examples of activities of government in Australia which, since the nineteenth century, have been conducted by government owned and controlled instrumentalities with independent corporate personalities. 1. (1992) 174 CLR 219 at 230-231.

The creation of the SASB as a body corporate representing the Crown in right of New South Wales for the purposes of any New South Wales legislation, including its constituent statute, its powers and functions, the relevant auditing provisions, and the method of appointment and removal of board members, together with the history of public administration in New South Wales, attract the application of the reasoning in Deputy Commissioner of Taxation v State Bank (NSW). The result is that the SASB is to be classified as an instrumentality which, for the purposes of constitutional provisions such as s 75(iv), is a State.

It follows that the action in this Court was properly instituted and that the jurisdiction of this Court, which necessarily was federal jurisdiction, was rendered by s 38 of the Judiciary Act exclusive of the federal jurisdiction otherwise invested in the Supreme Court of Western Australia by s 39. It is not, as we understand it, disputed that the Commissioner is relevantly the State of Western Australia.

The "appeal" instituted by the SASB, as described in s 33(1) of the Stamp Act, in the Supreme Court of Western Australia also was a matter between States within the meaning of s 75(iv) of the Constitution. Section 38 of the Judiciary Act (which is supported by s 77 of the Constitution) was attracted so as to render the jurisdiction of this Court exclusive. The provision in s 33(3) of the Stamp Act that the Supreme Court of Western Australia "shall hear and determine an appeal under subsection (1)" could not prevail against the operation of Ch III of the Constitution and s 38 of the Judiciary Act [37] . In the event, and as the SASB foreshadowed by the institution of the two proceedings, nothing of significance will turn upon the incompetence of the appeal from the Commissioner to the Supreme Court of Western Australia. This is because it is accepted by the parties that a full measure of appropriate relief may be given in the action originally instituted in this Court.

See Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 479.

However, there remain the substantive issues at the heart of the controversy between the parties. These are related but conceptually distinct. The first is whether the Stamp Act, upon its proper construction, imposes duty upon the Sale Agreement. The second, if the answer to the first be in the affirmative, inquires as to the measure and nature of the liability, if any, imposed by the legislation upon the SASB in respect of that duty.

This involves what Dixon J described [38] as the "mutual legal relations" between two States and requires further consideration of the particular status which the SASB asserts it has under the statute law of New South Wales by which it was created and of the reaction thereto of the law of Western Australia.

Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 363.

The Solicitor-General for New South Wales sought to approach these matters as questions of statutory construction of the laws of New South Wales and Western Australia. He eschewed any submission that, by their terms or in their operation, the laws of the two States affected inconsistently the transactions or relationships of the same juristic entity. There may have been a conflict between laws, in a constitutional sense [39] , if the 1987 Act had stated that the SASB was not subject to taxation under the law of any other State [40] . Accordingly, the Solicitor-General did not take up the point noted in Port MacDonnell Professional Fishermen's Association Inc v South Australia [41] , namely that the Constitution contains no express paramountcy provision similar to s 109, by reference to which there are to be resolved conflicts between competing laws of different States.

The term "conflict" also is used to identify those aspects of the rules of private international law which apply where the court of the forum determines one or more issues before it by reference to a "choice" of the law of another forum as the lex causae. Thus, the statute law of the forum may pick up the law of another jurisdiction and, further, the common law choice of law rules may, if not displaced by statute of the forum, select a foreign law as the lex causae. It has been said (Dicey and Morris, Conflict of Laws, 12th ed (1993), vol 1, p 33) that, in such a case the only "conflict" possible is that in the mind of the judge who has to decide which system of law to apply in the particular case and that the preferable term is "choice of law". The term "choice" sufficiently indicates the possibility of applying one or another system of law to the facts of the case under consideration. Be that as it may, when used in a federal system, "conflict" has a meaning quite different to any which is the concern of private international law. Within one law area of a federation, the laws of several legislatures may operate and may clash in doing so. Where the conflict is between a federal and State or provincial law, resolution is effected pursuant to s 109 of the Australian Constitution and, in the United States and Canada, by express or implied statements of federal supremacy. The fundamental difference of opinion in Breavington v Godleman (1988) 169 CLR 41 and McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 concerned the impact of the national legal structure created by or pursuant to the Constitution upon the common law choice of law rules as they exist in the various States and Territories. 2. cf Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46; Gazzo v Comptroller of Stamps (Vict) (1981) 149 CLR 227. 3. (1989) 168 CLR 340 at 374.

Speaking extra-judicially in 1943, Sir Owen Dixon said [42] :

The colonies were and the States are distinct jurisdictions and the enactments of their legislatures are confined in their territorial operation because a State is a fragment of the whole. In other States the recognition of its statutes depends upon the general common law principles governing the extra-territorial recognition and enforcement of rights, as affected by the full faith and credit clause. (Emphasis added.) The subsequent recognition of the full scope for extraterritorial legislation of the States [43] serves only to increase the potential scope of the problem in Australia [44] . Certainly s 118 of the Constitution has achieved some substantive operation, as is indicated by the acceptance of Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd [45] by six members of the Court in Breavington v Godleman [46] . 1. "Sources of Legal Authority" in Jesting Pilate (1965) 198, at p 201. 2. See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 3. Professor Laycock encapsulates the comparable situation in the United States as follows (Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, Columbia Law Review, vol 92 (1992) 249, at p 297 ): "To simultaneously apply the conflicting law of two states is impossible; to require each state to apply the law of the other is absurd; and to let each state apply its own law repeals the [Full Faith and Credit] Clause. Sister-state law cannot be equal in any of these senses. The requirement that each state apply the same law is comprehensible only on the assumption that there are occasions when the law of a sister-state applies and occasions when it does not." 4. (1933) 48 CLR 565 at 577, 587-588. 5. (1988) 169 CLR 41 at 81, 96-97, 116, 134, 150.

In Rothwells Ltd (In liq) v Connell [47] , one issue was whether a deed executed in Western Australia, not stamped with duty in accordance with the Stamp Act but stamped in Queensland, was inadmissible in a Queensland court by reason of non-compliance with the law of Western Australia. In the Queensland Court of Appeal Fitzgerald P and Williams J concluded that [48] , even if the proper law of the deed was that of Western Australia, the Queensland legislation prevailed "over an inconsistent statutory provision of another State". However, it should be noted that, on its proper construction, the Stamp Act (s 27) did not purport to extend its "sterilising" effect to proceedings conducted in a court outside Western Australia. Therefore, in Queensland, there was no conflict with the laws of Western Australia in any constitutional sense.

(1993) 119 ALR 538; 27 ATR 137; 93 ATC 5,106. 2. Rothwells Ltd (In liq) v Connell (1993) 119 ALR 538 at 546; 27 ATR 137 at 144; 93 ATC 5,106 at 5,112.

These issues remain for another day. The submission for the SASB rested on several propositions: (i) under the common law rules of choice of law, it is the law of the place of incorporation which determines whether a corporation exists and what its powers and functions are [49] , (ii) the same is true, independently of the operation of s 118 of the Constitution, of the recognition in one State of a body invested or endowed with a corporate character by the legislation of another State [50] , such as s 4(1) of the 1987 Act, (iii) by an analogy (which, in the event, we do not accept), the reasoning in (i) and (ii) applies also to the status conferred upon the SASB by s 4(2) of the 1987 Act, (iv) that sub-section evinces an intention of the New South Wales legislature that the SASB represent the Crown in right of New South Wales in its investment activities wherever occurring, and (v) the SASB did not "lose" that status upon crossing State boundaries to carry on activities in Western Australia [51] and, moreover, (vi) in Jacobsen v Rogers [52] , it was said, obiter, that the application of the presumption that a statute is not intended to bind the Crown "extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation".

Arab Monetary Fund v Hashim [No 3] [1991] 2 AC 114 at 123 (CA), at 161-162, 181 (HL); PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at 655; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 664. 2. Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd (1947) 74 CLR 375 at 384-386, 389-390, 391. 3. cf State Government Insurance Corporation v Government Insurance Office of NSW (1991) 28 FCR 511 at 557-558. 4. (1995) 182 CLR 572 at 585.

In this way, the effect of the submissions for the SASB is to treat rather differently the operation of the Western Australian legislation in its impact upon a dealing in property in Western Australia by the State of New South Wales to that in respect of a dealing with such property by the Crown representing, say, the United Kingdom or New Zealand. As to those other countries, Attorney-General (Eng) v Sorati [53] provides an example. There it was held by the Supreme Court of Victoria that, upon its proper construction, the Limitation of Actions Act 1958 Vict applied to actions brought in Victoria by the Crown in right of the United Kingdom as well as to actions brought by the Crown in right of Victoria.

This litigation involves, the Solicitor-General for New South Wales submitted, "considerations of federalism". These are expressed in terms of the relative strengths of the presumption that (putting to one side the paramount position of the Commonwealth) a Western Australian statute was not intended to bind the Crown in any of its other capacities. The benefit of the presumption would be enjoyed by another State more strongly than by, say, the United Kingdom or New Zealand.

In our view, there are special federal considerations involved, but they do not operate in the way suggested by the Solicitor-General. First, as to s 114 of the Constitution. This forbids a State, without the consent of the Parliament of the Commonwealth, from imposing any tax on property of any kind belonging to the Commonwealth; nor shall the Commonwealth impose any tax on property of any kind belonging to a State. But there is no prohibition placed upon one State imposing upon another State a tax with respect to property of the other State within the area of the first State or with respect to dealings by the other State in such property.

Frankfurter J once identified the proposition that the power to tax involved the power to destroy as a "seductive cliché" [54] . In that case, Graves v New York; Ex rel O'Keefe, the United States Supreme Court determined that the imposition by the State of New York of an income tax on the salary of an employee of a federal instrumentality placed no unconstitutional burden upon the federal government. However, in Melbourne Corporation v The Commonwealth [55] Starke J referred to the United States decision in putting what he identified as the starting proposition that "neither federal nor State governments" might destroy the other "nor curtail in any substantial manner the exercise of its powers" or obviously interfere with one another's operations [56] .

Graves v New York; Ex rel O'Keefe (1939) 306 US 466 at 489. 2. (1947) 74 CLR 31 at 74. 3. See also Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 214, per Mason J.

Whether such a doctrine applies as between the States need not detain us. Even if it does so apply, there can be no suggestion that a non-discriminatory tax upon instruments dealing with transactions in property located in one State offends in the necessary sense the interests of another State.

If there were any broad prohibition, derived from the federal constitutional structure, upon one State imposing upon a second State a tax of the nature described, then, as between respective States, there could be deleterious results. As was pointed out in argument, the more affluent States, asserting the constitutional protection against the imposition of taxation by the other States (whether as to stamp duty, land tax or other imposts) might acquire significant assets in other States to their disadvantage by deprivation of what otherwise would be their revenue.

That apparently being the constitutional position, there is no strong ground for presuming a legislative intention not merely that the enacting State does not tax itself, but also that it intends not to oblige another State to meet a tax imposed by a law which is otherwise of general application, in respect of dealings in property situated in the State. In our view, there is no such presumption, at least in this class of case.

Secondly, analysis of the mutual legal and constitutional relationships involved is not decisively assisted by asking whether, for the purposes of New South Wales legislation, the 1987 Act renders the SASB a body entitled to the privileges and immunities of the Crown or whether it "represents" the Crown. In Minister for Works (WA) v Gulson [57] , Latham CJ referred to "the contention that because the Crown is one and indivisible the rule that the Crown is not bound by a statute expressed in general words applies so as to create a presumption that a State Government is not bound by any Commonwealth Act (or regulation)". His Honour continued:

The principle that the Crown is one and indivisible is very important and significant from a political point of view. But, when stated as a legal principle, it tends to dissolve into verbally impressive mysticism. It is of little assistance in a practical system of law where a Commonwealth can sue a State, a State can sue a Commonwealth, and a State can sue a State; where the same position exists as between a Dominion and a Province in Canada; and where, to take another example, the Dominion of New Zealand has the same share in the Government of the Union of South Africa as the Union has in the Government of the Dominion, namely, no share at all. The political importance and significance, as regards the organisation of what was then the Empire, to which the Chief Justice referred, no longer exists. As regards the relations between Australia and the United Kingdom, that is made clear by the operation of the Australia Acts. Questions of foreign state immunity and of whether an Australian law, upon its true construction, purports to bind a foreign state now should be approached no differently as regards those foreign states which share the same head of state than it is for those foreign states which do not [58] . This is consistent with the reasoning and outcome in Nolan v Minister for Immigration and Ethnic Affairs [59] . Nor is the mysticism to which Latham CJ referred of assistance today in dealing with the mutual legal relationships between the Australian States. 1. (1944) 69 CLR 338 at 350-351. 2. See, generally, Foreign States Immunities Act 1985 Cth, ss 9-22. 3. (1988) 165 CLR 178 at 183-186.

The question of how far common law principles of sovereign immunity are applicable to the States may be considered with reference to the situation in the United States. The Eleventh Amendment to the Constitution of the United States provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. In various respects this has reflected similar tensions between theories of sovereign immunity developed by the common law in the British unitary state and notions of federalism. Recently, in Seminole Tribe of Florida v Florida [60] , the Supreme Court by a narrow majority (Rehnquist CJ, O'Connor, Scalia, Kennedy and Thomas JJ, Stevens, Souter, Ginsburg and Breyer JJ dissenting) held that the Eleventh Amendment prevents Congress from authorising suits by Indian tribes against States to enforce federal laws enacted pursuant to the Indian Commerce Clause (Art I, s 10, cl 3). Souter J gave detailed consideration to the doctrinal basis of State sovereign immunity in the federal system. His Honour said [61] : Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict

We said in Blatchford v Native Village of Noatak [62] that "the States entered the federal system with their sovereignty intact," but we surely did not mean that they entered that system with the sovereignty they would have claimed if each State had assumed independent existence in the community of nations, for even the Articles of Confederation allowed for less than that.

(1991) 501 US 775 at 779. Souter J emphasised that the adoption of the Constitution made the States members of a novel federal system which sought to balance the States' exercise of some sovereign prerogatives with "the principle of a limited but centralising federal supremacy". He also pointed out [63] : The very idea of a federal question depended on the rejection of the simple concept of sovereignty from which the immunity doctrine had developed; under the English common law, the question of immunity in a system of layered sovereignty simply could not have arisen The Framers' principal objectives in rejecting English theories of unitary sovereignty, moreover, would have been impeded if a new concept of sovereign immunity had taken its place in federal question cases, and would have been substantially thwarted if that new immunity had been held to be untouchable by any congressional effort to abrogate it.
1. (1996) 134 Law Ed 2d 252.
2. Seminole Tribe of Florida v Florida (1996) 134 Law Ed 2d 252 at 296, 324.
3. (1991) 501 US 775 at 779.
4. Seminole Tribe of Florida v Florida (1996) 134 Law Ed 2d 252 at 329.

As we have indicated with reference to earlier decisions of this Court, the Constitution does not identify the polities which are components of the federal system as the Crown in any one or other right. It speaks of the Commonwealth and of the States. It recognises (s 110) that there will be a chief executive officer or administrator of the government of each of the States. Section 61 of the Constitution vests the executive power of the Commonwealth in the Crown, providing that it is exercisable by the Governor-General as representative of the Crown, and s 1 provides for the Crown as an element in the federal Parliament.

In such a setting, to speak of the Crown in right of the Commonwealth is to give inadequate recognition to the structure of the Constitution. Thus, in The Commonwealth v Cigamatic Pty Ltd (In liq) [64] , Dixon CJ preferred to characterise the dispute with which that case was concerned as a question of a State legislative power affecting to control or abolish a federal fiscal right belonging to the Commonwealth as a government and affecting its Treasury. That, the Chief Justice said, was the more correct way of looking at the matter in modern times.

We were referred to The Commonwealth v New South Wales [65] . That case concerned a pre-federation statute of New South Wales, the Stamp Duties Act 1898 NSW. It was decided that the statute did not affect the Crown, as Griffith CJ put it [66] , "as representing the community of New South Wales", so that it could not, after the establishment of the Commonwealth, be construed as affecting "the Crown as representing the Commonwealth, ie the community of New South Wales plus the other States, any more than it could be construed as affecting the Crown as representing the whole Empire". The case thus does not bear directly upon the present issues.

(1906) 3 CLR 807. 2. The Commonwealth v New South Wales (1906) 3 CLR 807 at 813-814.

In Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [67] , the issue as presented on the pleadings was whether the Trade Practices Act 1974 Cth did not apply to the Commissioner for Railways for the State of Queensland because, as a corporation sole, the Commissioner was an instrumentality or agent of "the Crown in right of the State of Queensland" and the federal statute "was not intended to bind the Crown in right of a State" [68] . The Court approached the matter on that footing and, in deciding in favour of the Commissioner, held that there did not appear by express words or necessary implication an intention in the statute to bind the Crown in right of a State. However, it should be noted that Gibbs ACJ [69] spoke of the federal considerations involved and referred to the position that, within limits of the Melbourne Corporation doctrine, "the Commonwealth can legislate so as to bind a State".

(1979) 145 CLR 107. 2. See the defence set out, Bradken Consolidated (1979) 145 CLR 107 at 108. 3. Bradken Consolidated (1979) 145 CLR 107 at 122-123.

That passage was referred to by Brennan J when formulating the issue before the Court in Jacobsen v Rogers [70] . The Court there decided that a warrant could be granted under s 10 of the Crimes Act 1914 Cth which, subject to public interest immunity, authorised the search of a State government department and seizure of documents connected with the investigation of offences against laws of the Commonwealth. There was no question there arising of the impact upon the law of one State upon the activities of a corporation created, at least for some purposes, as a Crown instrumentality by the laws of another State. Moreover, in the joint judgment in Jacobsen v Rogers [71] , the issue was identified as whether the Parliament of the Commonwealth intended by s 10 to bind not only "its own executive government" but also "the executive governments of the States". Their Honours reasoned that, since it had been intended to bind the executive government of the Commonwealth, there was no reason to suppose lack of an intention to bind the executive governments of the States.

(1995) 182 CLR 572 at 594-595. 2. (1995) 182 CLR 572 at 591.

An analysis of whether the 1987 Act rendered the SASB entitled to the privileges and immunities of the Crown and whether it "represents the Crown" may assist in deciding whether the SASB would be bound by other statutes enacted by the New South Wales legislature. That particular question as it arose in a given instance would be answered by the considerations discussed in Bropho v Western Australia [72] .

But the issue at this stage of the present litigation is best approached by asking whether, in the framework of the Constitution (particularly Ch III) by recourse to which the rights and liabilities of the parties fall to be determined, the SASB is a State. As we have indicated, that question should be answered in the affirmative.

The remaining issue, as presented, is whether the Western Australian legislature is to be presumed not to have intended to tax agreements for purchase of property in Western Australia by another State, where that State was engaged in commercial dealings apparently on the same basis as any entity making a commercial investment in pursuance of wide powers as custodian of trust funds.

There is limited assistance in the authorities. In the Public Curator (Q) v Morris [73] , the New South Wales Full Court held that the Landlord and Tenant (Amendment) Act 1948 NSW exempted from its operation only the Crown in right of the State of New South Wales, with a necessary corollary that it was intended to bind the Crown in right of any other State. The Public Curator was a corporation sole constituted as such by the Public Curator Acts 1915 Q. The Public Curator was conceded to hold as lessor certain premises in Sydney on behalf of the Crown in right of the State of Queensland and was held to be bound to comply with the restrictions upon recovery of possession imposed by the New South Wales legislation upon landlords. The Full Court rejected the submission that what was called the presumption that the Crown is not bound by statute, in the absence of a contrary intention, applies only to the acts of the legislature of forum and not also to the Crown in right of another government. But as a matter of necessary implication the Court held that the Crown in other capacities to New South Wales was bound. By reason of the concession as to the nature of the Public Curator's office, it was unnecessary to decide the question comparable to that in this case. That is, whether the conclusion as to the characterisation of the Public Curator was determined by the lex fori or the law of Queensland.

If the enacting State desires by curial means to enforce the obligations it claims are imposed by its legislation upon the SASB, then it becomes a question of whether the SASB is a State so as to attract s 75(iv) of the Constitution. We have expressed our conclusion that the SASB is a State and that s 75(iv) was attracted by this litigation. Consistently with this, the question of the mutual legal relations, presented as being whether the law of Western Australia "binds the Crown in right of" New South Wales, is better framed as being whether the law of Western Australia binds the State of New South Wales. We have expressed our conclusion that there is, at least as regards a statute such as the Stamp Act, no broad presumption against application of the law to what otherwise would be liabilities arising by reason of the activities of a second State in Western Australia.

We have referred to various provisions of the Stamp Act. With one qualification, they do not suggest any legislative intention other than that the law should apply according to its terms in respect of instruments, such as the Sale Agreement, in respect of which in the Sch 2 liability is attached to the purchaser thereunder. The qualification concerns the offence created by s 39. As indicated earlier in these reasons, the SASB is a corporation upon which liability otherwise would fall under this provision. However, if it also be classified, as in our view it must for this purpose, as a State, there would apply the rule of interpretation which would require the clearest expression of intention, to use the words of Dixon J in Cain v Doyle [74] . The use of the term "person" in s 39 and the meaning given thereto by s 5 of the Interpretation Act do not supply that clear expression of intention. However, as indicated earlier in these reasons, in our view the various civil remedies which we have described are fully applicable to the SASB. In particular, the relevant assessment was properly issued and, in making payment, the SASB acted in discharge of a legal obligation.

In the result, in each of the causes pending in the Full Court of the Supreme Court of Western Australia and removed into this Court it should be ordered that the appeal be dismissed with costs. The result is to leave standing the orders made by Nicholson J. Only those orders made in the action remitted from this Court were, by reason of the operation of ss 75(iv) and 77 of the Constitution and s 38 of the Judiciary Act, within the competence of the Supreme Court. However, in the circumstances, no further order of this Court is required to respond to that situation.

At a glance

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Judgment (153 paragraphs)

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Cases Cited (42)