Notes for Intergovernmental Immunities PDF

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Notes for Intergovernmental Immunities...

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IMMUNITIES I NQUI RY:c o ns t i t ut i o na lv a l i di t yoft hel a wi nque s t i o n 1 ) Ch a r ac t e r i s et h el aw:Wh a th e a do fCt hl e g i s l a t i v ep o we rmi gh tt h i sl a wf a l lun d e r ? 2 )I st hel a w‘ wi t hr e s p e c tt o ’t h i sc on s t i t u t i o n a lh e a d ( s )ofp o we r ,s u c ht h a ti tmi g h tbe c o n s t i t ut i o na l l yv a l i d ? I fs o : 3 ) Ar et h e r ea n ye x pr e s sori mpl i e dl i mi t a t i o nsu p o nt h ec o n s t i t ut i o na lv a l i d i t yo ft h i s p a r t i c ul a rs t a t ut e ? a )I nt e r g o v e r nme nt a li mmuni t i e si nqui r yar i s e she r e ! 1 . Wa st heAc ti nque s t i o ni nt e nd e dt obi ndt heo t he rl e v e lo fg o v e r nme nt -St a t eo r Ct h? 2 I st hi sAc tc ons t i t ut i o nal l yv a l i di ni t sa ppl i c a t i ont ot heSt a t e /Ct h?

1) Does the act intend to bind the other level of government 2) Which level of government introduced the legislation (state or cth) 3) Cth Binding States i. Cth legislation can bind states (Engineers) ii. Subject to certain exceptions iii. State prerogative powers i. Mentioned in obiter in Engineers, rejected in later decisions ii. Uniform Tax Case (No 1) (1942) iv. Commonwealth taxation laws i. Subject to s116, Cth can impose taxes on the states ii. Victoria v Cth (Payroll Tax Case) v. Structural integrity doctrine i. Austin/Clarke one limb version: does the law curtail capacity of the states to exercise constitutional powers  Discrimination against specific states is an example/evidence of this (subsumed first limb of Melbourne corp into second limb)  Kirby and Native Title Act case emphasized that it must affect ability to function, not just ease of performing activities ii. McHugh in Clarke criticized single limb, saw no obvious benefits and potentially unforeseeable consequences iii. CJ French Multifactorial Test in Clarke i. singles out one or more states or imposing a special burden or disability ii. Whether the operation of the law is of general application but imposes a particular burden or disability on the states iii. effect upon the capacity of the states to exercise their constitutional powers iv. The nature of the capacity or functions affected v. extent to which the constitutional head of power under which the law is made

4) States binding Cth i. States have plenary power ii. But power may have been exclusively granted to Cth, who can then use s109 to strike the law out iii. Cth bound by state law unless it shield itself out (Pirrie) iv. Henderson case is current authority i. State legislation cannot affect the Cth’s executive capacities  Executive capacities include Cth’s rights, powers and privileges  Arguably broader than just the Cth’s prerogatives ii. States can affect/regulate activities that are undertaken in the exercise of the Cth’s executive capacities v. Cigamatic Case i. Followed by McHugh and Gummow in Henderson but rejected by majority  Not for state to define rights, duties, privileges of crown  States don’t have power to control the rights/duties that exist between Cth and its people  But two situations that are exceptions a. Affected by doctrine i. Where Cth chooses to be affected by states laws ii. E.g. enters into contract iii. So choosing to act as an ordinary citizen b. Statutory Waiver i. Cth passes legislation showing it is bound ii. E.g. 64 of Judiciary Act 1903 1. State legislation can apply in relation to certain disputes iii. E.g. Commonwealth Places (Mirror Taxes) Act 1998 Cth iv. vi. Kirby’s Approach in Henderson i. Mutual immunity doctrine ii. Look to Melbourne Corp for guidance for both Cth->States and States->Cth iii. Support from Anne Twoomey

1) FIRST QUESTION: Does the Act intend to bind the other level of Govt? Question: is the legislation intended to bind the Crown/ body politic in the first place? Commonwealth law: - did this Commonwealth law intend to bind the States/ a particular State? State law: - did this State law intend to bind the Commonwealth, in its application? General presumption that parliamentary statutes are not intented to bind the government (Crown): eg. Bradken though this principle has received severe criticism: see, eg, Bropho per Gibbs ACJ How may this presumption be rebutted by the Parliament? 1. Express words - Are there any express words which evince an intention in the legislation- that it was intended to bind the other level of government? Examples: - ‘This Act shall bind the Crown’: bind executive within that jurisdiction - State Act: ‘this Act shall bind the Crown’: therefore only binds State executive - ‘This Act shall bind the Crown in right of the Commonwealth and in right of the States’: binds both levels of executive government : provisions such as these- serve to rebut the presumption that act of Parliament will not apply to the executive branch of government - and evince intention that the Act is to apply to the other level of government Express words: important consideration

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Note: important consideration arises here as to what intention is expressed by such words What form of words would court treat as evincing legislative intention to bind another level of government? ie. for Commonwealth Act to bind the State executive government? arguable: that reference to ‘the Crown’ in a state Act is not intended to bind Commonwealth executive- but rather refer to Crown in right of the State only: Essendon Corporation; Cth v Bogle Therefore: full presumption of State immunity- will be displaced only by clause in state Act declaring that: ‘this Act shall bind the Crown in right of the Commonwealth and in right of the several States’: Hanks

2. Implied intention

Whilst the presumption of Crown immunity was traditionally difficult to rebut (see Bradken), the government is now considered so involved in the daily workings of society that this intention to bind the Crown can be easily imputed (Bropho; Jacobsen) e.g. necessity, obviousness (e.g. only 1 state electricity business, Cth passes Act on this  clear implied intention to bind this as can only apply to that business)

1) SECOND QUESTION: If the Act intends to bind Cth/State, does it fulfill the relevant test for constitutional validity? SCENARIO ONE: COMMONWEALTH LEGISLATION BINDING THE STATES

Main inquiry: implicit limits on Cth’s ability to legislate to bind the States Is this a Commonwealth law, created by Cth Parliament? Does it purport to bind the States/ State governments/ a particular State? Can such a law permissibly bind the States? Given this Act intends to bind another level of government, is it constitutionally permissible for the legislation of one polity in a federation to apply to another? Starting point: Commonwealth laws can bind the States: Engineers’ case -

First Test: Austin Today: one-limb test applies, established by majority HCA judgment in Austin v Commonwealth (2003) Test: Austin TEST: whether the Cth law impinges or curtails State’s ability to function as a government: Austin per majority considering substance and actual operation of the Cth Act as well as its form: Austin per Gaudron, Gummow and Hayne JJ effect of Austin consolidation: means that discrimination against a State by a Cth law- by imposing burden or infringement upon that State- is not enough in itself to validate the Cth law rather: must go to State’s capacity to function and impairment of that capacity- in order to render Cth law constitutionally invalid

THEREFORE, look at the facts and cases to argue whether impinges ability to function:   

Does it stop key business operation? – e.g. deny the States banking facilities (Melb Corp) Does it affect a large agency of a State? – e.g. where electricity is largely state-provided (QEC v Cth) Does it affect high-level/important State employees? (re AEU; Austin; Clarke) o (e.g. law preventing the Premier from being in WA = bad; law preventing people from monitoring national parks = fine) o HCA felt employees at the high end of the State, with significant authority and ability to direct large numbers of people/departments get immunity, look at:  Is it a Governmental functions (protected in right of Crown) or trading functions (not protected)  look at nature of the service  Administrative public servants (important ) or other employees  Are they making hiring & firing decisions OR are they other employment decisions 

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Are they affecting Minimum wages / superannuation/ other terms and conditions?  would it lower the minimum wage to such an extent that nobody would work for the State (Cth cnnot be making working for the state so unappealing as to prevent people from working for the State BUT depends where the minimum wage impact is felt – e.g. low level vs high level employees) Does it affect high level employees (ministers, their immediate staff, etc…) and their ability to direct departments OR does it affect others (e.g. teachers?)  E.g. affecting teachers = fine; affecting education department as a whole = bad

E.g. Cth law preventing ministers from going to work (e.g. evacuate the office of all ministers because too close to the ocean so needed to be evacuated for defence purposes) would be invalid BUT a law that shut down one school preventing teachers from working would be fine. ALTERNATIVELY: 1) McHugh in Clarke criticized single limb, saw no obvious benefits and potentially unforeseeable consequences Note: Earlier formulation of this test: two limbs Nature of this test was for significant period divided into two limbs, established in case of Melbourne Corporation: see, eg, Queensland Electricity per Mason CJ: 1) Discrimination: Cth law which discriminates or imposes special burden or disability upon States will be invalid; and 2) Destroying or curtailing continued existence of States or their capacity to function as governments: Cth law will be invalid : therefore first limb of this test has been subsumed, and is now simply another consideration in determination of whether capacity of States to function is impaired by the Cth law: see Austin per Gleeson CJ, Gaudron, Gummow and Hayne JJ

2) French CJ proposed his own multi-factoral test: 1. whether the law in question singles out one or more of the States and imposes a special burden or disability on them which is not imposed on persons generally (discrimination); 2. whether operation of law of general application imposes particular burden or disability on States; 3. effect of law upon capacity of States to exercise their constitutional powers; 4. effect of law upon exercise of functions by the States; 5. nature and capacity of functions affected; 6. subject matter of law affecting State or States and in particular- extent to which constitutional head of power under which the law is made- authorises its discriminatory application [important step]

CASES: (NB: These are old cases, therefore look only for how facts could be considered in new test!!)

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Melbourne Corporation: OLD VIEW: applied the old two-limb test: (i) does the measure discriminate against a State; (ii) does the measure impact upon a State’s capacity to function  the second limb still remains (fist has been superseded into this)  RELEVANT FACTS FOR NEW TEST: attempt to nationalise banking invalid: Here: Act forbidden banks to do business of the States without consent of Federal Treasurer: therefore directly operates to deny States banking facilities, and to discriminate against States or impose disability upon them: not justified by the Cth’s banking power QEC v Cth: FACTS: Cth Act created to resolve industrial dispute over electricity in QLD, OLD TWOLIMB VIEW APPLIED: looking at (ii): Think about this in terms of broader scale employment – State governments employ a lot a people BUT private providers can provide large-scale employment!  Practical effect of the law only significantly affected an agency of the Government of Qld and therefore it discriminated against a State  E.g. if was passed in WA, outcome would be the same as electricity is largely State generated BUT if the same legislation was passed in Victoria it would not offend the limb as electricity supply in Vic is largely privatised  LOOK AT THE FACTS!

Re AEU: FACTS: i n d us t r i a lr e l a t i o n sdi s pu t ei nVi c t o r i a , r er e d u nd a n c ypa c ka g e sg i v e nt opu b l i ch e a l t h wo r k e r sa n ds c h o o lt e a c h e r s , Cth Commission dealt with industrial disputes in Vic, sought to set employment conditions (min wage, for example), Vic sought to prevent this  OLD TWO-LIMB VIEW, looking at (ii): Looked at exactly who was being affected by the legislation  State is a legal construct BUT is able to do what it does because it employs lots of people  how does law affect the people running the State – e.g. teachers, police, etc…  HCA felt not all of these people can get an immunity  depends on importance of their function  HELD:Fe de r a la wa r dc o ul da ppl yt os omea s p e c t so fSt a t ep ubl i cs e c t o r-e g . mi ni mum wa g e sa n dwo r ki n gc o ndi t i o ns -f e d e r a la wa r dwasp e r mi s s i b l eh e r e -p r o v i d e di tt oo ka c c ou nto fa n ys p e c i a l f u nc t i onso fSt a t ee mp l o y e e sBUTwo u l di nf r i n g ei mp a i r me n t( s e c on d)l i mb :i fi tc o v e r e dpa r t i c ul a ra s p e c t so fSt a t e p ubl i cs e c t or -b e c a us ewo ul di nhi b i tSt at e ’ sa bi l i t yt of unc t i o n

Austin v Cth: FACTS: Cth Act governing superannuation for State judges  challenged  NEW ONELIMB TEST APPLIED  HCA: majority: Cth legislation invalid because of way it applied to State judges (in -

conformance with principles of earlier cases) impaired terms and conditions of higher-level government employees, affecting their remuneration  (Applied AEC Case re: high-level employees) concern: would make it more difficult to attract judges to State benches- because of remuneration being seen as unattractive  impinges ability of State to function as having judges is essential critical to State’s capacity to function as a government: that it retains ability to determine terms and conditions of employees at higher levels of gov; and Ministers, ministerial advisers, heads of departments and judicial officers: all clearly fall within this group regarding discrimination post-Austin:  discrimination could invalidate a Cth law: if it impinged on ability of State to function as a government

Clarke v Cth: FACTS: Cth Act applying to superannuation of members of State Parliament  HCA: unanimous: law invalid - Austin principle applied (very straightforward application of Austin for most of court) - Principle: up to State to determine and decide how they wanted to remunerate their Parliamentarians - Therefore affected functioning of the States

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NB: see alternative formulation of test by French CJ!!

STATE LEGISLATION BINDING THE COMMONWEALTH

Is this a State law, created by State Parliament? - Does it purport to bind the Commonwealth/ Cth executive? (prelim Q above) - Can such a law bind Cth executive? - Is this State law constitutionally valid? 1) First question: can a State law bind the Commonwealth? Question of whether State laws can bind the Cth is both complex and unsettled Today: accepted view appears to be that State legislatures can bind Cth to some degree: see Henderson - but this power is inhibited: by Cth immunities and executive capacities and functions of the Cth: Henderson; Pape per Gummow, Crennan and Bell JJ

TEST: Henderson’s case Henderson provides leading statement of the law at present- as to question of whether State legislation can bind the Commonwealth government: Majority judgment in Henderson: proposed an important distinction by which validity of State law purporting to bind the Cth could be determined Question: what aspects of Cth power is the State Act purporting to affect here? - Distinction: between - executive powers of Cth: powers sourced from the prerogative and s 61, affecting rights, powers, privileges and immunities of the Cth; and - regulation of activities which Cth chooses to enter in the exercise of its executive function : Henderson per Toohey, Gaudron and Dawson JJ 1. First category: State law which purports to regulate executive powers and functions: is invalid: Henderson per Brennan CJ 2. Second category: if State law applies as law of general application over particular field, which Cth chooses to enter: regulation of the Cth by State law is valid: Henderson per Brennan CJ  if State Parliaments pass legislation which just assumes those executive capacities of Cth, and merely seeks to regulate activities in which Cth chooses to enter

Further consideration: nature of relationship between Cth and citizens - validity of State law according to majority’s test in Henderson: may be affected by effect of Cth law on relationship of the Cth vis-à-vis its citizens: Equal relationship: - if Cth is in equal relationship with citizens as regards particular activity involved: application of State law must preserve this equality (re regulation of Cth exercising its executive functions) : therefore application of the State law cannot single out Cth, as an ordinary citizen Unequal relationship:

- if relationship is one of inequality between Cth and citizens (eg. Cth exercising its prerogative or federal fiscal powers): this inequality must also be retained by the application of the State law : if nature of the relationship between Cth and citizen in either circumstance is retained- law which regulates activities which Cth chooses to enter into in exercise of its functions: is valid : Henderson per Toohey, Gaudron and Dawson JJ However minority views propose a different view: Complete Cth immunity from State laws: McHugh J - State legislatures have no power to affect executive powers of the Cth, whether powers are sourced from s 61, the prerogative or any other source: Henderson per McHugh J Cth immunity re executive powers: Kirby J - States have no ability to bind the Cth in exercise of its prerogative or federal powers: Henderson per Kirby J Alternative test: - Kirby J proposes alternative test from distinction propounded by majority: reversal of Melbourne Corporation doctrine: : State legislation cannot bind Cth if it affects the Cth’s ability to function: Kirby J Note: this idea is not necessarily sustainable: because all of cases re State legislation binding Cth: seem to be based on premise that State Parliaments do not in the first place have ability to touch Cth authority NOTE: what is the status of this test today? - distinction and test set out by majority in Henderson’s case- is of questionable validity- some uncertainty in its application still exists - Zines: distinction enters into ‘slippery ground’ Nevertheless: - following most recent HCA enunciation on this point, some acceptance of Henderson appears evident: - clear that State Parliaments cannot affect Cth immunities (prerogative and federal fiscal powers, s 61?) by State legislation: Pape per Gummow, Crennan and Bell JJ

CASE EXAMPLES:

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Henderson’s Case: Cth Act: Est the Def Housing Authority (DHA) to provide adequate housing for members of the Aust Def Force, gave authority for DHA to lease property then sub-lease to members of ADF, leased Henderson’s property, Henderson later asked for key to conduct rent inspection under RTA (NSW), ADF refused  Cth argued immunity from State RTA  HELD: Cth is not immune 

Majority: State legislation did apply to Cth - State RTA: did not impact on executive capacities of Cth- as did not effect functioning of Defence Housing Authority - rather: simply regulated the activities carried out in exercise of Agency’s functions - because here: Defence Housing Authority was operating in context of ordinary legal system- not doing anything special but just acting like ordinary citizen

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Pirrie v McFarlane: OLD VIEW  State Act governed road rules, member of ADF charged with driving without a license under this Act, argued he was carrying out Cth functions (was dr...